Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2019 News | January 2019 | CSR Work refusals for immediate danger only: Tribunal Correctional officers claimed reduction in managers on duty would increase response time in emergencies, but no past incidents and mitigation plan reduced risk BY JEFFREY R. SMITH WORK REFUSALS are for situ- ations with imminent risk and danger and not to contest staff- ing policy, the Canada Occupa- tional Health and Safety Tribu- nal has stated in dismissing an appeal by correctional officers who engaged in work refusals following the reduction in man- agers overseeing combined in- stitutions. On April 1, 2014, Correctional Service of Canada (CSC) imple- mented a new policy for a num- ber of locations across Canada that included both a medium se- curity and a minimum security institution next to each other. The new policy integrated the administration of such institu- tions so they shared offices. The integration at two loca- tions — Beaver Creek/Fenbrook in Gravenhurst, Ont., and Col- lins Bay/Frontenac in Kingston, Ont., involved the elimination of a correctional manager position on the morning shift on the min- imum security side of the "clus- tered" institutions. Correctional managers are responsible for the daily operations of the institu- tion, such as operational plan- ning, financial management, staffing, inmate movement, visits, work schedules, and su- pervising correctional officers. With the integration, the correc- tional manager on the medium security side would also oversee the minimum security side. The elimination of the mana- gerial position prompted several correctional officers at both Bea- ver Creek and Collins Bay to file work refusals under the Canada Labour Code, claiming the lack of a correctional manager dur- ing the morning shift on the minimum security side created a danger in the workplace for of- ficers there because the manager located on the medium security would take longer to respond to an emergency on the minimum security side. A federal health and safety officer investigated the work re- fusals at Beaver Creek and deter- mined there was a danger. CSC responded to the decision by de- veloping a mitigation strategy in May 2014 that involved training, new communication protocols, and contingency plans — CSC claimed that under the strategy, there would be no delay in re- sponse to a danger on the mini- mum security side. The health and safety officer accepted this strategy and ruled there was no longer a danger as there was no emergency or unusual situations at the time of the work refusals — there were no reported incidents at either Beaver Creek or Collins Bay that represented a threat or risk to employees between 2012 and 2017 — and a correctional manager could direct an emer- gency response from anywhere in the combined institution — on the morning shift, this would be the manager still on duty on the medium security side. How- ever, some correctional officers felt the danger had not been taken care of and five engaged in work refusals once again — four at Beaver Creek and one at Col- lins Bay. The same health and safety officer investigated the circum- stances and once again found there was no danger to any of the correctional officers. The cor- rectional officers appealed the decisions to the tribunal, while CSC argued that there was no danger outside of that which was a normal condition of employ- ment for correctional officers. CSC also accused the correc- tional officers of using work re- fusals to challenge what was es- sentially a policy decision — the administrative combining of the institutions. The tribunal noted that in- mates who were classified as minimum security required a lower degree of supervision than medium security inmates — no fence and a greater amount of freedom of movement — and staff in minimum security insti- tutions didn't carry firearms. As a result, the risk of employees being injured was lower, as was the staffing requirements as set out in CSC's national standards. The tribunal referred to the test established by the Federal Court of Appeal in 2008 to de- termine a danger warranting a work refusal: the existing hazard or condition is likely to pres- ent itself; the employee will be exposed to the hazard or con- dition; exposure could cause injury or illness to the employee at any time; and the injury or ill- ness will occur before the hazard is corrected. Given there had been no re- ported incidents at the institu- tions in the past, the hazard- ous condition that concerned the correctional officers in the minimum security side was not likely to present itself — a fail- ure to meet the first part of the test determining if there was a danger, said the tribunal. While the officers claimed only hav- ing a manager on the medium security side increased response time to an emergency, the tri- bunal noted that, as the health and safety officer pointed out, managers could respond from anywhere. In addition, the man- ager wasn't a first responder and didn't have to be physically pres- ent to deal with an emergency, said the tribunal. The issues the correctional officers raised were really about CSC's staffing policy and should be addressed by the health and safety committee, said the tri- bunal, adding that work refusals under the code are for emergen- cy situations and didn't apply in these circumstances. The tribunal confirmed the decisions of the health and safety officer and dismissed the correc- tional officers' appeal. "(Work refusals) are for high risk situations where decisions have to be made in circumstanc- es where employees cannot wait for committee meetings and complaint procedures," the tri- bunal said in its dismissal of the appeal. "To reiterate, there was no emergency, or anything like it, on the days of the work refus- als and there were no foreseeable threats on the horizon." For more information see: • Stayer v. Correctional Service of Canada, 2018 CarswellNat 5769 (Can. OH&S Trib.). Credit: Shutterstock/Christopher Boswell

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