Employer's investigation was a reprisal, adjudicator rules

Jul 31, 2013

Scales of justiceAn internal investigation conducted after an employee appealed a right to refuse decision has been deemed a reprisal by an arbitrator.

Such reprisals violate provincial occupational health and safety acts and the Canada Labour Code. They also risk disengaging employees and undermining productivity. The result can be chaos for workplaces following just-in-time production schedules, says Workplace Safety & Prevention Services (WSPS) consultant Gordon Leffley.

Learn more about the case, as well as ways in which your workplace can take a more positive and proactive approach to addressing hazards.

The triggering incident

In November 2005, eight Canada Border Services Agency (CBSA) employees in Coutts, AB refused to work, pursuant to section 128 of the Canada Labour Code. Their concerns:

  • a lack of training to deal with armed and dangerous people
  • the need for an enhanced armed presence at the border
  • armed and dangerous “lookouts” (i.e., people to look out for) were not being flagged locally and nationally.

A health and safety officer assigned to investigate the refusal concluded there was no danger. One of the eight employees appealed to Occupational Health and Safety Tribunal Canada.

Prior to a tribunal hearing in November 2010, the employee emailed protected CBSA information to her legal counsel for use in her appeal. She also hand delivered protected information. During the hearing, another employee faxed protected information to the legal counsel, who presented it to a CBSA witness during cross-examination.

The witness raised concerns with CBSA’s Professional Standards Unit on how certain protected documents were shared, which led to an investigation. A senior investigator informed the employee that she would be subject to a professional standards investigation for unlawful disclosure of protected information. Such investigations carry with them the threat of discipline.

The employee later filed a complaint with the Public Service Labour Relations Board claiming that the investigation was a form of reprisal for having exercised her right to refuse unsafe work.

During the labour relations board hearing, the senior investigator was asked in cross examination about any conversations she had with CBSA management about the scope of her investigation. She testified that

  • the discussions were between her director general and regional management
  • she had received no specific directions from her manager about the investigation
  • she had not had any conversations with management in the Prairie region, where the complainant worked.

The third point turned out to be untrue. Evidence submitted during the board hearing showed that a district director had communicated by phone and email with the senior investigator.

In her decision, the adjudicator noted that “it is clear to me from [the emails’] tone and content that he was frustrated by the complainant’s exercise of her right.” Furthermore, the professional standards investigation was “inextricably linked” to the employee’s exercise of her rights. Consequently, ruled the adjudicator, the CBSA had retaliated against the worker for raising safety issues1.

Understanding the right to refuse

Provincial and federal occupational health and safety legislation give workers the right to refuse work that they believe is unsafe to themselves or other workers. More specifically, if they have reason to believe that

  • any machine, equipment or tools that workers are using or are told to use are likely to endanger them or another worker
  • the physical condition of the workplace or workstation is likely to endanger them
  • workplace violence is likely to endanger them
  • any machine, equipment or tool that workers are using, or the physical condition of the workplace, contravenes occupational health and safety legislation or regulations and is likely to endanger them or another worker.

The right to refuse is one of three rights given to workers. The others are the right to

  • know about hazards in their work and get information, supervision and instruction to protect their health and safety
  • participate in identifying and solving health and safety problems through the joint health and safety committee (JHSC) or health and safety representative.

The law prohibits employers from penalizing workers who exercise their rights or seek enforcement of the legislation.

Work refusal as symptom

WSPS’s Gordon Leffley considers the right to refuse work an essential component of a health and safety management system: it draws immediate attention to a situation that may pose harm to a worker or co-workers. “It’s like an emergency stop button on a piece of machinery. It’s there if needed. However,” adds Leffley, “if everything’s working properly it shouldn’t be needed.”

Leffley describes work refusals as a last resort. “It’s safer and more productive to address potential hazards early on rather than wait for a refusal or, even worse, an injury. From an operations perspective alone, the impact can be devastating. For any business operating with just-in-time schedules, a work refusal can create chaos. If work stops in one location, then all of the processes that lead up to it and follow after it also could be affected.

“If workplaces make other avenues available for reporting hazards and getting them addressed,” continues Leffley, “then refusals usually don’t occur. If a worker reports a hazard to a supervisor, there should be a procedure or process to follow through to resolve it. This process should include some form of oversight by the JHSC or health and safety representative because of their legislated roles in identifying hazards, making recommendations and investigating refusals. Often a committee or representative can also contribute by providing useful information on the hazard.”

If a refusal occurs

Leffley identifies several possible steps for workplaces to take.

  1. Follow all the legislated requirements, documenting them as you go. Workplaces that do this tend to resolve refusals quickly. Check out the Ministry of Labour’s Guide to the Occupational Health and Safety Act: Part V, which uses a Q&A format and flow chart to describe the right to refuse process.
  2. Look at why the situation got this far. Why did it not get resolved by other means? Are there other issues at play? In a workplace with a functioning health and safety system, it should never take a work refusal to get an answer.
  3. Communicate results. For instance, if a worker reports a hazard, inform workers about the concern, tell them what process has been followed, explain how the concern was resolved, and publicly thank the worker for having brought the concern forward. This goes a long way towards telling workers that a process is in place that works and doesn’t require a work refusal.

How to prevent refusals from occurring

Leffley offers several suggestions on how you can minimize the risk of a refusal and, more importantly, protect workers from hazards that could lead to a refusal.

  1. Review and update your workplace hazard assessment to ensure you’ve identified all potential hazards, and develop an action plan to control them. Be prepared to update the assessment if hazard reports or work refusals highlight issues that had not been recognized or considered.
  2. Ensure workers and supervisors understand their roles and responsibilities, and have the knowledge and training to fulfill them, starting with orientation training and the Ministry of Labour’s new awareness training for workers and supervisors. Another useful resource is Certification training. A drop in work refusals was one of the biggest changes we saw with the introduction of certification training in the 1990s. With the additional information that the training provides to joint health and safety committee members, they’re able to resolve any worker concerns more quickly and effectively. To complement the training, make sure your policies and procedures lay out clear processes to follow.
  3. Review your hazard reporting process and procedures, and ensure workers and supervisors know how to report and investigate possible hazards. Make improvements if needed. Forms can help document key processes and guide people to ensure steps are followed properly.
  4. Communicate with workers and supervisors about hazards that have been reported and the steps taken in response. For instance, explain the nature of the hazard, how you’re addressing it, and what progress is being made if the changes cannot be made immediately. I’ve seen refusals where an employer has committed to doing something about the hazard, but that information had never made its way to the worker who had initiated the refusal. This can undermine all the good work that’s gone on and leave workers with an impression that work refusals are the only way to draw attention to problems.
  5. Draw on outside expertise as required. WSPS consultants can help you set up a work refusal process, and educate workplace parties on their roles and responsibilities, and provide training on procedures to follow. From a preventive perspective, consultants can also conduct assessments to identify and correct hazards before they become the subject of a work refusal.

1 The full decision for Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 is available online