Canadian Employment Law Today

Canadian HR Reporter, 2019 Ontario worker overzealous in harassment complaint, work refusal Accidental physical conduct by and brief encounter with super visor not proof worker faced dangerous condition in the workplace BY JEFFREY R. SMITH A n Ottawa transit worker's un- happiness with how his em- ployer handled his harassment complaint did not mean he was in danger in the workplace, the Canada Occupational Health and Safety Tribunal has ruled. Abdulkadir Hassan was employed with the City of Ottawa as a bus driver with 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 supervi- sor told him the control centre was trying to contact him to assign a route. e supervi- sor was standing outside the bus doors as they discussed the matter. Hassan stood up from his driver'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 supervisor why he had touched and pushed him, and the supervisor explained he hadn't meant to and apologized. Hassan called the control centre and asked for special constables to be dis - patched to deal with the incident, but the control centre attendant coached him to try to resolve things through discussion with the supervisor. ey discussed matters for a short while and the supervisor insisted it was a misunderstanding and he hadn't in - tended to make physical contact with Has- san — he was making a hand gesture when Hassan walked toward him and came into contact with his hand. Hassan again re- quested a special constable, so he was in- structed to go to another nearby station and wait for one there. Hassan later emailed management 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 rec - ommendation 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 began on Jan. 31, 2018 and was to run for one week. OC Transpo investigated the incident, but after reviewing statements and inter - viewing the parties involved, he and the committee both determined there was no workplace violence. Modified duties ended quickly after encounter However, on his first shift, Hassan encoun- tered the same mobile supervisor who had been involved in the incident as he exited the washroom. ere was no physical con- tact and no exchange of words, but Hassan later claimed the supervisor sneered at him and "stared him down." Hassan didn't immediately report the en - counter, but he emailed his supervisor the next day to say he didn't feel safe working in the same location as his alleged assaulter. e supervisor suspended Hassan's modi - fied work and reviewed the incident. On Feb. 2, the supervisor decided there was no safety issue — the mobile supervisor spent "95 per cent to 98 per cent of his working time" on the road dealing with service is - sues even if he was based out of that garage and there was no reporting relationship be- tween 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 regular driving du - ties as of Feb. 4, 2018. Hassan's next shift was Feb. 5, but instead of coming to work, Has- san invoked his right to refuse to work un- der 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 employee while at work has reasonable cause to believe that... a condition exists in the place that consti - tutes a danger to the employee." e work refusal referred to both encounters with the mobile supervisor as well as other incidents in which he had requested special consta - bles to be dispatched but was refused. Hassan's work refusal stated that "my entire requirement of modified accommo- dation and medical attention is based on assault (the mobile supervisor) has done to me. "e matter is not if (the supervisor) is a threat to me but my medical requirement accommodation is based on (being) placed in a situation away from (the supervisor) and radio transmission on bus or control, during the period of medical requirement for modified duties." OC Transpo's workplace health and safety committee investigated Hassan's work refusal, but it determined there was no danger to him — although it made rec - ommendations about "internal processes in regards to employee relations and immedi- ate response and resolution of issues" and measures to help employees understand the protocols of the control centre in re- sponding to calls for assistance. Hassan filed a claim for workers' com- pensation benefits for psychological stress stemming from the incident, but his claim was denied. Hassan continued his work refusal, so a delegate from Employment and Social De - velopment Canada (ESDC) was called in to investigate. e delegate found that the Oct. 14, 2017 incident could have been resolved WORK REFUSALS are a tool available to workers under occupational health and safety legislation if faced with workplace hazards that pose a threat to their safety. However, they are intended to be a last resort after other methods to eliminate the risk have been exhausted. 4 CASE IN POINT: HEALTH AND SAFETY BACKGROUND The right to refuse work is intended to be 'an emergency measure' and 'is not the usual way in which hazards are to be addressed.'

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