Canadian Employment Law Today

Canadian HR Reporter, 2019 Canadian Employment Law Today | 3 Cases and Trends Ontario trucking company employee's work refusal stalls Damaged equipment didn't operate normally but didn't pose imminent danger to workers BY JEFFREY R. SMITH AN ONTARIO worker who exercised a work refusal over damaged equipment has lost his appeal claiming that he faced a dan- ger and imminent serious threat in the work- place. Victor Lambe was employed as a ware- house supervisor for McKevitt Trucking Limited, a trucking company based in Mis- sissauga, Ont. As part of his job, Lambe prepared loading docks for delivery trucks when the trucks arrived with cargo to unload into the warehouse. e loading docks fea- tured docking plates, which were large plates that bridged the gap between the dock and the delivery truck. In order to release the docking plates from their resting position, a worker stood next to a plate and pulled a handle with a tool called a "pin puller" — a metal tool that was about three feet long with a handle at one end and a 90-degree curve at the other end. Once the handle is pulled, the docking plate springs upwards, extends and rests on the delivery truck trailer. In 2018, some of the docking plates in the McKevitt warehouse weren't working properly. In order to extend these plates, a worker had to stand inside the truck trailer instead of in the warehouse beside the plate, grip and pull the docking plate forward with the pin puller, and stand on the plate to force it down onto the delivery truck trailer. en, a 45-pound brake drum was pulled onto the plate with the pin puller to hold it down. In August 2018, Lambe was injured while lifting a docking plate and he had to seek medical treatment for back issues stemming from the injury. Lambe decided that operat- ing faulty docking plates in this way consti- tuted a danger to him and other McKevitt workers, so, on Sept. 1, 2018, he exercised his right to refuse work under the Canada La- bour Code, claiming that the upward move- ment of the docking plates from their resting position — requiring weight to hold them down — wasn't consistent with their normal operation. e code states that employees can refuse to work in a place or perform an activity if they have reasonable cause to believe that "the use or operation of the machine or thing constitutes a danger to the employee or to another employee." Danger is defined in the code as "any hazard, condition or activ- ity 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." Investigation found no danger McKevitt conducted a workplace investiga- tion to evaluate the circumstances around the docking plates and concluded there was no danger to its workers. However, it or- dered replacement parts to repair six dock- ing plates — five that required old brake drums to hold down and one that was com- pletely out of service. Lambe disagreed with the investigation report and refused to return to work. e company's health and safety committee then looked into the situation and agreed that a danger didn't exist — although it also found that several plates needed weight to hold them down and some parts needed to be re- placed. e committee recommended that the plates be repaired and a service schedule should be implemented. Lambe wasn't satisfied and continued his work refusal, so McKevitt contacted the Labour Program, which sent a delegate to investigate the work refusal. e ministe- rial delegate found that McKevitt hadn't ensured the docking plates were free of surface irregularities and ordered that this be fixed by Nov. 16. e delegate also not- ed that the docking plates weren't clearly marked or tagged with their maximum safe load and this should be rectified by the same date. However, the delegate deter- mined that there was no danger to Lambe since, although the docking plates could come up faster and higher than a normally operating plate, they wouldn't do so "in an alarming way" that could cause injury to a nearby worker. Work refusal continued Lambe appealed the delegate's decision, maintaining that when he removed a brake drum from a faulty docking plate to release it, the plate would release faster than usual and could hit him or another worker nearby in the face or arm. He also noted that any items such as a piece of wood left on such a docking plate could be sent flying, although he hadn't seen or heard of that happening. McKevitt maintained that it had taken steps to reduce any risk by using the brake drums as weights to keep the plates down and it was moving forward with inspection and repair of the plates before any threat to life or health existed. e Occupational Health and Safety Tribunal Canada noted that the situations Lambe cited as examples of the danger he faced — plates springing up faster than normal after the weight is removed and either hitting someone or propelling items through the air — hadn't actually hap- pened and the docking plates hadn't actu- ally caused any accident or injury in the warehouse. ese scenarios were "purely hypothetical and do not meet the threshold required to be considered a reasonable pos- sibility," the tribunal said. Given that those scenarios hadn't hap- pened and weren't likely to happen, the tri- bunal found that there was no reasonable ex- pectation or risk that the hazard would have developed at the particular time that Lambe initiated his work refusal. "It is my conclusion that the upward movement of the docking plates from their horizontal resting position, even in a man- ner not consistent with their normal opera- tion, did not consist of an imminent threat at the time [Lambe] refused to work," the tribunal said. e tribunal confirmed the ministerial delegate's finding that the docking plates were faulty but the speed and height at which they could spring up were too low to cause injury to a worker operating them or walking by. As a result, there was no serious threat presented by the docking plates that war- ranted a work refusal. e tribunal confirmed the ministerial delegate's conclusion that there was no seri- ous threat or danger to Lambe in the work- place and a work refusal wasn't necessary. For more information see: • Lambe v. McKevitt Trucking Limited, 2019 TSSTC 17 (Can. Occupational Health & Safety Trib.). The situations the worker cited as examples of the danger he faced hadn't actually happened.

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