Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2017 News | August 2017 | CSR Odour in plane justified work refusals CUPE wins appeal over flight crew work refusals after tribunal found Air Canada was directed to notify its employees of potential health hazard BY JEFFREY R. SMITH THE FEDERAL Court has over- turned a health and safety tribu- nal's findings that Air Canada crew members didn't have a le- gitimate reason to refuse work over strange odours on planes. On June 23, 2011, an Air Canada plane was scheduled to fly from Edmonton to Vancou- ver, and then from Vancouver to Toronto. The service director on the plane for both flights was Francisco Diaz Delgado and he was accompanied by two flight attendants on each flight. Shortly after takeoff of the Edmonton to Vancouver flight, Diaz Delgado noticed a smell that reminded him of "blue cheese," "dirty sock," and a "smelly gym bag." After about 15 minutes, the smell disappeared but it was de- tectable again when the aircraft descended towards Vancouver and during its landing. Diaz Delgado discovered in the logbook that an odour had been noticed a few days earlier. The plane's captain and Air Can- ada's maintenance team felt the odour didn't indicate any dan- ger, but Diaz Delgado and the two flight attendants refused to work under the Canada Labour Code, which allows employees of federally-regulated employ- ers to refuse work if there was a danger to them — "danger" be- ing defined as "any existing or potential hazard or condition… that could reasonably be expect- ed to cause injury or illness to a person exposed to it before the hazard or condition can be cor- rected, or the activity altered…" Air Canada brought in a re- placement service director and two replacement flight at- tendants. However, when they heard Diaz Delgado explaining to members of the workplace committee his reasons for re- fusing to work and the mechan- ics couldn't pinpoint the cause of the odour, they also refused to work on the plane. When the captain explained that the odour would only be present during takeoff and landing, three of the flight attendants agreed to work the flight to Toronto. Diaz Delgado and the other service director contin- ued their work refusal. Strange odour detected on another plane Flight attendant Hadin Blaize was scheduled to work on a dif- ferent Air Canada plane flying from Toronto to Calgary and then from Calgary to Vancouver on June 4, 2012. As the aircraft left the gate, she noticed a smell that she described as "similar to vomit/strongly smelly feet/ shoes." As the plane prepared for takeoff, the service director told Blaize about an entry in the cab- in log that an inoperative airpack or possible oil leakage had been detected but fixing it had been put off until later. The mainte- nance log indicated an unpleas- ant odour had been detected during takeoff and landing on four different occasions before Blaize's flight, with a crew mem- ber noticing a haze in the rear galley earlier that day. The odour dissipated shortly after takeoff, but Blaize had some mild nausea during the flight due to dry air in the rear of the plane. When the plane arrived in Calgary, Blaize learned the same plane would be used for the con- tinuation to Vancouver. She then exercised a work refusal. Her symptoms had gone away, but she visited her family doctor. The crew on the plane noticed a mild "smelly socks" odour on the flight to Vancouver, but no one had any symptoms. Howev- er, when the same plane left Van- couver for another destination, the crew noticed a strong odour, had headaches, and the first offi- cer experienced serious nausea. One of the flight attendants had a metallic taste in her mouth and couldn't sleep that night. A health and safety officer investigated the work refusals and determined that the smell was likely caused by jet engine oil and hydraulic fuel that could decompose at high tempera- tures. The jet oil could cause va- pours that could be irritating or harmful, but the officer found that a low threshold of the va- pours wasn't harmful and just a smell didn't indicate a health hazard. As a result, the officer found there was no danger un- der the Canada Labour Code. The Canadian Union of Pub- lic Employees (CUPE) appealed the findings. An appeals officer of the Occupational Health and Safety Tribunal Canada dis- missed the appeal, agreeing that there wasn't a danger and the employees weren't justified in refusing work. In reaching its decision, the tribunal considered evidence from experts who agreed the odour was caused by leaking jet oil and other fluids, but didn't believe there was a hazardous level of contaminants in the air- craft cabins and said nausea and other symptoms could be psy- chological responses. Airline directed to warn employees of hazard However, the health and safety officer also issued two directions to Air Canada under the code on the basis that the airline had failed to warn its employees of a "known or foreseeable health hazard" or to investigate a situ- ation where employees "may be exposed to hazardous substanc- es." At the same time the tribunal dismissed CUPE's appeal, it up- held the directions. CUPE appealed the tribu- nal's decision, arguing it was inconsistent with the directions against Air Canada. The court noted that when the tribunal upheld the directions is- sued to Air Canada, it found that the jet oil vapour in the plane's environmental control systems met the requirement of a "fore- seeable health hazard" that Air Canada was obliged to inform employees about. When the tri- bunal looked at the work refus- als, it found the evidence didn't show a causal relationship be- tween the odour and a danger to employee health and safety. However, the court also said that "causation is proven on a balance of probabilities; that standard of proof does not re- quire certainty." The court was concerned the tribunal didn't seem to analyze the employees' symptoms — symptoms that were consistent with the mate- rial safety data sheet for jet oil when there is leakage. The court found that the tri- bunal's appeals officer's decision on its own wasn't unreasonable given the evidence. However, since the same tribunal found the odours indicated a foresee- able health hazard using the same evidence in upholding the directions to Air Canada, this called the decision into question. "The contradictory findings in the decision and the (upholding of the directions) are a badge of unreasonableness, and the con- tradiction was not sufficiently explained so as to maintain the transparency and intelligibility of the decision," said the court. "The (upholding of the direc- tions) finds the employees were endangered while the decision finds that there was no danger to the employees. The words dan- ger and endanger are the same with the former being the noun and the latter a verb." The court also found that the hazard and the way the employ- ees detected it was the same in each decision. The difference was that the upholding of the directions against Air Canada dealt with investigation of a haz- ardous substance and the main decision dealt with work refus- als, but the facts were the same. The court granted CUPE's ap- peal and set aside the decision of the tribunal's appeals officer on the employees' work refusals, or- dering it to be returned for rede- termination using the same evi- dence. See Canadian Union of Public Employees v. Air Canada, 2017 CarswellNat 2627 (F.C.).

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