Canadian Employment Law Today

March 29, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 3 Cases and Trends Failure to investigate work refusal unreasonable but understandable Employer should have investigated circumstances of employee's health concerns but it was preoccupied with many work refusals due to labour unrest BY JEFFREY R. SMITH AN ONTARIO correctional officer's work refusal due to health concerns on a day when the employer was short- staffed and occupied with many refusals should have been investigated promptly but the employer's failure to do so was understandable, an arbitrator has ruled. e correctional officer was hired by Cor- rectional Services Canada (CSC) in 1989 to work at the Elgin Middlesex Detention Cen- tre (EMDC) in London, Ont. e officer had sinusitis — an inflammation or swelling of the tissue lining the sinuses — which made her extremely sensitive to second-hand smoke, dust, and other air contaminants. She also had a learning disability. CSC was aware of the officer's condition and that it made her sensitive to smoke. ough the detention centre was a non- smoking facility, inmates smuggled contra- band cigarettes to use, resulting in second- hand smoke sometimes being present. Smoke was a bigger problem on the week- ends, as "intermittent inmates" who served their time on weekends often brought in and smoked cigarettes in their unit. e officer had an accommodation agree- ment with CSC that stipulated she wouldn't be scheduled to work night shifts and she wouldn't be assigned community escorts. In addition, if she detected any smoke in the unit where she was working, she was to in- form management and attempts would be made to re-assign her to another area of the institution. In early September 2014, there was a pe- riod of labour unrest at the institution after nine employees were disciplined. is pe- riod featured several work refusals and sick calls by employees, leading to a lockdown where managers from other institutions had to come to the EMDC to keep essential oper- ations going. ings got particularly bad on Sept. 7, when sick calls and refusals resulted in only 32 correctional officers reporting for work instead of the usual 58. e correctional officer in question was scheduled to work in her usual post in the EMDC's unit 7 from 7 a.m. to 7 p.m. How- ever, because of the staff shortages, it was de- cided to staff the unit with managers and re- locate non-management staff to other areas. e officer was re-assigned to unit 9, which consisted mostly of worker inmates. e of- ficer exercised her right to refuse work due to safety concerns because she believed she would be exposed to second-hand smoke and other air contaminants in unit 9. e officer was directed to wait in the lunchroom while management dealt with her work refusal, but they were preoccu- pied with the mass work refusals tied to the labour unrest. Work refusals relating to the necessities for inmates took priority, and as a result the officer's refusal was a low priority. After waiting for several hours and hear- ing nothing from management, the officer contacted the Ontario Ministry of Labour, which advised her it would contact CSC to recommend moving forward with a stage 1 meeting. After 4 p.m., a supervisor realized the of- ficer's work refusal was still ongoing and met with her in the lunchroom. e officer ex- plained the reason for her work refusal and said she hadn't gone to the unit or been ex- posed to smoke. She was then advised that a stage 1 meeting would be held when there was an opportunity to do so, so the officer continued to wait in the lunchroom. Later that day, the superintendent advised the officer and others participating in work refusals that there would be no overtime payments for employees who overstayed their shift to pursue work refusals. If the cir- cumstances of the work refusal still existed when she returned for her next shift, then she could re-activate her refusal. However, the officer was still at the institution at 9:30 p.m. when she was told CSC still hadn't con- tacted the ministry and she should leave. e officer signed for overtime from 7 to 9:30 p.m. and was paid for these hours due to an administrative error. e labour unrest was resolved on Sept. 9 and the officer reported for her next shift on Sept. 10. She was back at her regular unit, so the basis of her earlier work refusal was no longer present. e union, OPSEU, filed a grievance claiming CSC violated the collective agree- ment, the Ontario Human Rights Code, and the Ontario Occupational Health and Safety Act by failing to investigate her work refusal and management engaged in "systemic bul- lying" during her work refusal because of her accommodation. It also claimed CSC violated the accommodation agreement by assigning her to a different unit than that which was agreed to in the accommodation agreement. OPSEU demanded $1,000 for the officer for the violation of her rights. Arbitrator Ken Petryshen disagreed that the accommodation agreement required CSC to only assign the officer to unit 7 to avoid potential air contaminants. e real- ity was that CSC was only required to assign her to posts that were consistent with her medical restrictions, not a specific unit, Pet- ryshen said. Arbitrator Petryshen also found that the way CSC handled the officer's work refusal was not harassment. While it wasn't ideal, it was "solely attributable to the operational pressures confronting the employer on that day," and not due to any bad faith on CSC's part, said Petryshen. However, despite the fact it was reason- able for CSC to give priority to work refus- als that impacted the health and safety of inmates, it wasn't reasonable to push the of- ficer back in favour of the mass work refusals it also prioritized. e officer's single refusal was not complicated and could have been addressed with a quick investigation before the end of the shift, Petryshen said. Given the lack of bad faith on CSC's part, the "significant pressures" it faced that day, and the fact the officer was still paid for over- time — which CSC didn't seek to recoup — Petryshen didn't think any additional rem- edy was necessary except for a declaration that CSC's failure to investigate the work re- fusal was unreasonable and a violation of the Occupational Health and Safety Act. ere was no violation of the collective agreement or Human Rights Code, said Petryshen. For more information see: • Ontario Public Service Employees Union (Gough) and Ontario (Minister of Commu- nity Safety and Correctional Services) (Dec. 21, 2016), Ken Petryshen – Arb. (Ont. Grievance Settlement Bd.). Employee waited several hours for her work refusal to be investigated, to no avail

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