Canadian HR Reporter

CANADIAN HR REPORTER AUGUST 2019 NEWS 11 Employee's right to refuse work highlighted in Ontario transit worker case Physical conduct with supervisor not considered dangerous condition by tribunal BY JEFFREY R. SMITH A n Ottawa transit worker's unhappiness with how his employer handled his harassment complaint did not mean he was in danger in the workplace, the Canada Occupa- tional Health and Safety Tribu- nal has ruled. In Hassan v. City of Ottawa (OC Transpo), 2019 TSSTC 8 (Can. Occ. Health & Safety Trib.), Ab- dulkadir Hassan was employed with the City of Ottawa as a bus driver at the city's transit agency, OC Transpo. On Oct. 14, 2017, Hassan's bus was parked at a sta- tion when an OC Transpo mobile supervisor told him the control centre was trying to contact him to assign a route. e supervisor was standing outside the bus doors as they discussed the matter. Hassan stood up from his driv- er's seat and tried to walk off the bus toward the supervisor, but the supervisor put his hand up and held him, then pushed him back while saying, "Go and do your run." Hassan asked the su- pervisor why he had touched and pushed him, and the supervisor explained he hadn't meant to and apologized. Hassan called the control cen- tre and asked for special con- stables to be dispatched to deal with the incident, but the control centre attendant coached him to try to resolve things through dis- cussion with the supervisor. ey discussed matters for a short while and the supervisor insisted it was a misunderstanding and he hadn't intended to make physical contact with Hassan — he was making a hand gesture when Has- san walked toward him and came into contact with his hand. Hassan again requested a spe- cial constable, so he was instruct- ed to go to another nearby station and wait for one there. Hassan later emailed manage- ment to say he didn't feel hurt from the push, but he felt the control centre tried to cover for the mobile supervisor. He added that he felt "belittled and helpless." Hassan went on medical leave and later provided a recommendation by his physician that he be placed on accommodated duties, so OC Transpo assigned him to one of its garages to assist others and clean buses. e garage assignment be- gan on Jan. 31, 2018 and was to run for one week. OC Transpo investigated the incident, but after reviewing statements and interviewing the parties involved, the supervisor and committee both determined there was no workplace violence. Modified duties ended quickly after encounter However, on his first shift back, Hassan encountered the same mobile supervisor who had been involved in the incident as he ex- ited the washroom. ere was no physical contact and no exchange of words, but Hassan later claimed the supervisor sneered at him and "stared him down." Hassan didn't immediately re- port the encounter, but he emailed his supervisor the next day to say he didn't feel safe working in the same location as his alleged as- saulter. e supervisor suspended Hassan's modified work and re- viewed the incident. On Feb. 2, the supervisor decided there was no safety issue — the mobile super- visor spent "95 per cent to 98 per cent of his working time" on the road dealing with service issues, even if he was based out of that garage, and there was no report- ing relationship between the two men — and told Hassan he was expected back at work that day. Hassan saw his doctor again and was cleared to return to his regu- lar driving duties as of Feb. 4, 2018. Hassan's next shift was Feb. 5, but instead of coming to work, Hassan invoked his right to refuse to work under the Canada Labour Code, which states "an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employ- ee while at work has reasonable cause to believe that... a condition exists in the place that constitutes a danger to the employee." e work refusal referred to both encounters with the mobile supervisor as well as other inci- dents in which Hassan had re- quested special constables to be dispatched but was refused. Hassan's work refusal stated "my entire requirement of modi- fied accommodation and medical attention is based on assault (the mobile supervisor) has done to me. e matter is not if (the su- pervisor) is a threat to me but my medical requirement accommo- dation is based on (being) placed in a situation away from (the su- pervisor) and radio transmission on bus or control, during the pe- riod of medical requirement for modified duties." OC Transpo's workplace health and safety committee investigated Hassan's work refusal, but it deter- mined that there was no danger to him — though it made recom- mendations about "internal pro- cesses in regards to employee rela- tions and immediate response and resolution of issues" and measures to help employees understand the protocols of the control centre in responding to calls for assistance. Hassan filed a claim for work- ers' compensation benefits for psychological stress stemming from the incident, but his claim was denied. Hassan continued his work re- fusal, so a delegate from Employ- ment and Social Development Canada (ESDC) was called into to investigate. e delegate found that the Oct. 14, 2017 incident could have been resolved inter- nally if OC Transpo had properly dealt with it, but OC Transpo and Hassan had then agreed upon a "competent person" to investi- gate the Oct. 14, 2017 incident — as required by the Canada Occupational Health and Safety Regulations. e delegate also found that Hassan had been cleared by his physician to return to his regular duties and there was no indica- tion he should avoid contact with the mobile supervisor. As a re- sult, Hassan was not exposed to a workplace danger at the time of his work refusal. Hassan appealed the delegate's decision, arguing that the investi- gation failed to take into account previous similar incidents and didn't properly investigate his harassment complaint — putting "my life and health in danger by not facilitating a safe work envi- ronment." After the appeal, the agreed-upon "competent person" completed a formal investigation and found Hassan's complaint to be unsubstantiated. e tribunal noted that the key concept in the right to refuse work involves "danger," which the code defines as "any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered." e tribunal also pointed out that it had been established in law that the right to refuse work in the code is intended to be "an emergency measure" and "is not the usual way in which hazards are to be addressed and risk is to be driven down." Reasonable person wouldn't perceive threat: tribunal e tribunal found there was no evidence of a condition that pre- sented a threat to Hassan's life or health. e work refusal happened after the encounter between Has- san and the supervisor outside a washroom in which Hassan said the supervisor sneered and stared at him. ere was no physical contact, exchange of words or gesture and the whole thing lasted for a few seconds. In addition, Hassan didn't immediately refuse to work — he only did so the next day after consulting his physician and being cleared to resume his normal du- ties as bus driver, said the tribunal, in finding there was no danger to Hassan in his working conditions between Jan. 31 and Feb. 5, 2018. "I have difficulty characterizing this situation as a threat," said the tribunal. "A reasonable person ob- serving the scene is not likely to conclude that this encounter con- stituted a threat to one's health." e tribunal acknowledged that the work refusal came in the con- text of a prior incident that trau- matized Hassan and caused him to go on medical leave. However, both an independent, agreed- upon investigator and the ESDC delegate found the complaint to be unsubstantiated. e tribunal itself also found that, based on Hassan's description of the prior incident, there was no act of vio- lence in the workplace. The tribunal confirmed the ESDC delegate's finding there was no danger warranting a work refusal, noting that Hassan may have felt unsafe because he be- lieved future requests for assis- tance wouldn't be met to his satis- faction, but it was speculation on his part and not objective proof he was in danger at the time of his refusal. Safety Reporter Canadian www.safety-reporter.com Credit: Songquan Deng (shutterstock) An Ottawa bus driver was not in danger on the job, according to a recent tribunal decision in Ontario.

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