Canadian Employment Law Today

Canadian HR Reporter, 2019 internally if OC Transpo had properly dealt with it, but OC Transpo and Hassan had at that point agreed upon a "competent per- son" to investigate the Oct. 14, 2017 incident — as required on 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 indication 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, said the delegate. Hassan appealed the delegate's decision, arguing that the investigation 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 in- vestigation and found Hassan's complaint to be unsubstantiated. e tribunal noted that the key concept in the right to refuse work involves "dan - ger," 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 ex - posed 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 re - fuse 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 presented a threat to Has- san's life or health. e work refusal hap- pened after the encounter between Hassan 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 duties 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 situa - tion as a threat," the tribunal said. "A reason- able person observing the scene is not likely to conclude that this encounter constituted a threat to one's health." e tribunal acknowledged that the work refusal came in the context of a prior inci - dent that traumatized 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 descrip - tion of the prior incident, there was no act of violence in the workplace. e tribunal confirmed the ESDC del- egate's finding there was no danger warrant- ing a work refusal, noting that Hassan may have felt unsafe because he believed future requests for assistance wouldn't be met to his satisfaction, it was a speculative on his part and not objective proof he was in dan - ger at the time of his refusal. For more information see: • Hassan v. City of Ottawa (OC Transpo), 2019 TSSTC 8 (Can. Occ. Health & Safety Trib.). October 9, 2019 | Canadian Employment Law Today CREDIT: BALKANSCAT/iSTOCK ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employmentlawtoday.com for more information.

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