Canadian Safety Reporter - sample

3 Canadian HR Reporter, a Thomson Reuters business 2017 News | May 2017 | CSR Failure to investigate work refusal unreasonable but understandable Employer should have investigated employee's health concerns but it was preoccupied with many work refusals due to labour unrest BY JEFFREY R. SMITH AN ONTARIO correctional offi- cer'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, an arbitrator has ruled. However, the arbitrator also said employer's failure to do so was understandable given the hectic conditions at the time. The correctional officer was hired by Correctional Services Canada (CSC) in 1989 to work at the Elgin Middlesex Detention Centre (EMDC) in London, Ont. The 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 offi- cer's condition and that it made her sensitive to smoke. Though the detention centre was a non- smoking facility, inmates smug- gled contraband cigarettes to use, resulting in second-hand smoke sometimes being pres- ent. Smoke was a bigger problem on the weekends, as "intermit- tent inmates" who served their time on weekends often secretly brought in and smoked ciga- rettes in their units. The officer had an accommo- dation agreement with CSC that stipulated she wouldn't be sched- uled to work night shifts and she wouldn't be assigned community escorts. In addition, if she detect- ed 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 period of labour un- rest at the institution after nine employees were disciplined. This period featured several work refusals and calling in sick by employees, leading to a lock- down where managers from other institutions had to come to the EMDC to keep essential operations going. Things got particularly bad on Sept. 7, when sick calls and refusals resulted in only 32 correctional officers re- porting for work instead of the usual 58 needed to keep things running normally. The correctional officer in question was scheduled to work at her usual post in the EMDC's unit 7 from 7 a.m. to 7 p.m. How- ever, because of the staff short- ages, it was decided to staff the unit with managers and relocate non-management staff to other areas. The officer was re-assigned to unit 9, which consisted mostly of worker and intermittent in- mates. The officer exercised her right to refuse work due to safety concerns because she believed she would be exposed to second- hand smoke and other air con- taminants in unit 9. The officer was directed to wait in the lunchroom while management dealt with her work refusal, but they were pre- occupied with the mass work re- fusals tied to the labour unrest. Work refusals relating to the necessities for inmates took pri- ority, and as a result the officer's refusal was low on the list. After waiting for several hours and hearing nothing from man- agement, the officer contacted the Ontario Ministry of Labour, which advised her it would con- tact CSC to recommend moving forward with a stage 1 meeting. After 4 p.m., a supervisor re- alized the officer's work refusal was still ongoing and met with her in the lunchroom. The offi- cer explained the reason for her work refusal and said she hadn't actually gone to the unit or been exposed 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 superin- tendent advised the officer and others participating in work refusals that there would be no overtime payments for employ- ees 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 institu- tion at 9:30 p.m. when she was told CSC still hadn't contacted the ministry and she should leave. The officer signed for overtime from 7 to 9:30 p.m. and was paid for these hours due to an administrative error. The labour unrest was re- solved on Sept. 9 and the officer reported for her next shift the fol- lowing day. She was back at her regular unit, so the basis of her earlier work refusal was no longer present. The union, OPSEU, filed a grievance claiming CSC violated the collective agreement, 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 bullying" during her work refusal because of her ac- commodation. It also claimed CSC violated the accommoda- tion agreement by assigning her to a different unit than that which was agreed to in the accommo- dation agreement. OPSEU de- manded $1,000 for the officer for the violation of her rights. Arbitrator Ken Petryshen dis- agreed that the accommodation agreement required CSC to only assign the officer to unit 7 to avoid potential air contaminants. The reality was that CSC was only re- quired to assign her to posts that were consistent with her medical restrictions, not a specific unit, Petryshen 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 con- fronting the employer on that day," and not due to any bad faith on CSC's part, said Petryshen. However, despite the fact it was reasonable for CSC to give priority to work refusals that im- pacted the health and safety of inmates, it wasn't reasonable to push the officer back in favour of the mass work refusals it also prioritized. The 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 pres- sures" it faced that day, and the fact the officer was still paid for overtime — which CSC didn't seek to recoup — Petryshen didn't think any additional remedy was necessary except for a declaration that CSC's failure to investigate the officer's work refusal was un- reasonable and a violation of the Occupational Health and Safety Act. Arbitrator Petryshen added that there was no violation of the collective agreement or Human Rights Code. For more information see: • Ontario Public Service Em- ployees Union (Gough) and Ontario (Minister of Commu- nity Safety and Correctional Services) (Dec. 21, 2016), Ken Petryshen – Arb. (Ont. Griev- ance Settlement Bd.). Work refusals relating to necessities for inmates, then mass refusals took priority

• Cover