Canadian Employment Law Today

CELT May 1 2013:celt 467.qxd 13-04-29 10:43 AM Page 7 CANADIAN EMPLOYMENT LAW TODAY Border officer overestimated radiation threat from Japan Officer feared mail in wake of tsunami and meltdowns was radioactive and refused to work without monitoring were no warnings or cautions, or any evidence there was a danger, so the A CANADIAN border services officer who agency determined there was no danger refused to sort mail coming from Japan to its employees. in the wake of the March 2011 tsunami Azeez appealed to the Canada Occuand nuclear meltdown was not in any pational Health and Safety Tribunal, danger of being exposed to harmful lev- arguing existing data didn't take into els of radiation, the Canada Occupa- account a BSO's duties and the exposure tional Health and Safety Tribunal has to potentially radioactive materials the ruled. job could entail. He argued any level of Damian Azeez was a border services exposure to radiation of BSOs could creofficer (BSO) for the Canada Border ate a potential hazard and is cumulative, Services Agency (CBSA) so repeated exposure at a cargo terminal in Miscould lead to hazards such WRONGFUL sissauga, Ont. On March as cancer. DISMISSAL 24, 2011, Azeez and a coAzeez pointed out worker noticed mail arrivCBSA's emergency preing from Japan and been put into the paredness all hazards approach plan system for them to screen. This was referred to dangerous goods, including cause for concern for Azeez because of radioactive materials, that come through the earthquake and tsunami that had Canada's ports of entry and BSOs must recently hit Japan and damaged a keep watch for such materials. He nuclear facility. The nuclear meltdowns argued this showed CBSA was aware that followed caused a spread of radioac- BSOs could be exposed to radiation. tive materials into the environment, On the day he refused work, Azeez forcing the area to be evacuated. said, there was no way of knowing whether the mail coming from Japan Concerns about radioactive mail had been exposed to radiation without a Azeez was worried the mail coming radiation detector and personal dosimefrom Japan might be contaminated with ter — which CBSA had. However, CBSA's radiation and sorting it could expose him efforts to find out about any danger — to dangerous levels. He felt CBSA should emails and conference calls with Health have screened the mail and provided Canada and other agencies — were not him with equipment to detect radiation due diligence to determine if there really levels. He believed the agency had such was a danger, as the data referred to equipment but it chose not to use it. general areas, not of the mail coming Azeez and his colleague initiated a into the mail centre at the Mississauga work refusal due to health and safety terminal. This was particularly true for concerns, pursuant to the Canada BSOs, who would have a higher degree Labour Code. of exposure to any radiation than the CBSA investigated the work refusal general public. Health Canada and and checked various federal and interna- CBSA were "making assumptions based tional agencies to see if there were any upon the statistical chance of something warnings or data regarding radioactive occurring rather than assessing the sitcontamination of Japanese mail that uation by monitoring at the site of conwould warrant special attention. There cern," said Azeez. | BY JEFFREY R. SMITH | Ultimately, CBSA was more concerned with "forcing people back to work" rather than investigating the radiation levels and coming up with data that would help protect BSOs who are exercising their right to refuse dangerous work, he said. CBSA argued reasonable expectation of injury could not be based on "hypothesis or conjecture." It pointed out Azeez had no data or other reason to be worried about radiation, other than his "fear" that he might be exposed. There was no medical or scientific evidence showing the levels of radiation of any items from Japan, such as mail, sufficient to cause injury or illness, CBSA submitted. No reason to doubt government guidelines: Court The tribunal noted the code defined "danger" as hazard, condition or activity that could "reasonably be expected to cause injury or illness." It also noted radiation exposure was commonly known to have hazardous effects on the human body, though exposure to low levels was common and unavoidable. The tribunal found Health Canada's guidelines were strict enough to limit the amount of exposure to radiation and as the "recognized authority" there was no reason to doubt its standards. Other organizations were also monitoring the radiation levels coming from Japan and assessing the risks of exposure in Canada, which were considered not dangerous to human health. Though radiation is harder to detect than other hazardous substances with which BSOs could come into contact, the tribunal found the monitoring of radiation levels in Japan and in Canada were Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 9 7

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