Right to refuse

THE UNSAFE CO-WORKER

Can a co-worker be a hazard according to the law? And what do you do if someone invokes the right to refuse?

By David Coté

Can a worker lawfully refuse to work with a co-worker he or she thinks is unsafe? The answer: Maybe. Not a very satisfactory answer, I appreciate. The uncertainty comes from inconsistently written health and safety laws, and conflicting decisions from labour relations boards.

To get a handle on all of this, we must start with the law. Each province has specific health and safety statutes, which permit employee complaints of unsafe work. Workers may refuse to work where they have reason to believe that equipment or the workplace is unsafe. Essentially, this means the worker must have an honest belief that the situation is unsafe. This requirement is designed to stop workers from using health and safety laws for political purposes unrelated to real workplace safety issues.

A worker who feels that the work is unsafe must promptly report the situation to management, which is required to immediately investigate the worker’s concern in her or his presence, along with a worker health and safety committee member, or the worker health and safety representative if no committee exists. (It’s a worker committee member or representative who must be involved in the investigation; having a management member won’t suffice.)

Management and the health and safety committee member or representative must make their best determination about whether the situation is truly unsafe. If the worker disagrees with their conclusion (or if management and the health and safety committee member or representative can’t agree among themselves) the situation proceeds to the next level.

Under this level, the worker must have more than an honest belief that the work is unsafe. Rather, he or she must have reasonable grounds for the belief. The difference is that under the "reasonable grounds" test, there must be an objective basis for the concern, beyond the honest belief of the worker. (In other words, the worker might honestly believe the situation is unsafe, but at the end of the day, may be wrong.) At this level, a government health and safety inspector must be called in, who will review the situation, and give a decision. If either party disagrees with this decision, it can be appealed under the legislation.

That’s a brief overview of the law. Now on to whether a worker can lawfully refuse to work with a co-worker he or she thinks is working unsafely. The answer, at least in part, depends on whether health and safety laws allow workers to use the right to refuse unsafe work provisions in these kinds of situations. Here is where things get a bit muddled. In trying to sort it out, I’d like to refer to two decisions: one from the Canada Labour Relations Board and one from the Ontario Labour Relations Board.

The first case is the decision of the Canada Labour Relations Board in Alan Kucher v. Canadian National Railway Company. In this case, Mr. Kucher refused to work a shift with a particular co-worker, claiming that he engaged in unsafe work practices. Mr. Kucher relied on the right to refuse unsafe work found in the Canada Labour Code. Mr. Kucher was disciplined for his refusal, and he then filed a complaint against the employer claiming that it had taken a reprisal against him for raising a health and safety concern.

At the hearing, the following facts were found:

* Mr. Kucher’s concern about the co-worker’s work habits stemmed back almost 20 years to when he was an apprentice under the supervision of the co-worker (the co-worker was referred to in the decision as "Mr. X").

* Over the years, the employer had gone to substantial lengths to ensure that Mr. Kucher was not assigned to work with Mr. X.

* On the shift in question though, personnel shortages resulted in the two workers being assigned together.

* When asked for specifics of how Mr. X’s work was unsafe, Mr. Kucher was unable to offer any. The following quote from the decision illustrates the point: "At the hearing, he [Mr. Kucher] was asked to describe the safety reasons on which he had been relying to refuse to work with Mr. X. All he could come up with were one or two incidents dating back from his apprenticeship days in 1978, when he had worked under Mr. X’s supervision. Mr. X was portrayed as unreliable and unpredictable, as having bad working habits and not following standard procedure or listening to his co-worker’s instructions. In the complainant’s [Mr. Kucher’s] mind, Mr. X was unsafe to work with, and that was the end of it."

* The employer called a number of witnesses who all testified that Mr. X was in fact a perfectly competent worker.

The Canada Labour Relations Board ruled that Mr. Kucher’s claim was not valid. Unfortunately, it is somewhat difficult to determine the exact basis for the board’s decision. On the one hand, the board clearly held that Mr. Kucher’s difficulty with Mr. X more likely stemmed from a personality conflict than a real safety issue. This is clear from the following excerpt: "For everyone, this [Mr. Kucher’s difficulty with Mr. X] was a problem that resulted from a personality conflict. The complainant himself could not deny that. In cross-examination, he admitted that he used to have a major personality conflict with Mr. X, that this conflict had started when he was an apprentice, and that it was much better now because he had hardly any contact with him."

In other words, the board held that there was no hard evidence of an unsafe work situation. However, the board also seemed to go further, and conclude that the conduct of a co-worker could not constitute a "danger" for the purpose of a worker’s right to refuse unsafe work under health and safety law. (The Canada Labour Code requires that the work in question constitute a "danger" for a worker to refuse to perform it.) This can be seen from the following excerpt:

"It is as much a fact of life as it is a normal condition of employment sometimes to have to work with people against whom there may be some animosity, and where an aversion may develop. No matter how serious and real the conflict, this remains a human resources problem, not one of health and safety. Respect, trust and personal liking are not safety considerations, and doubting a fellow worker’s abilities is no ground for refusing to work with that person. To use the right to refuse to work under Part II of the Code in this context is to do what cannot lawfully be done, i.e., to refuse to work for personal reasons when legitimate reasons for such refusal do not exist (such as specific allegations of harassment -- and none were made here; even if this had been so, this board would have been the wrong forum and this complaint the wrong recourse). Employees who are not in a position to refuse a work assignment pursuant to the applicable collective agreement cannot use the right to refuse to work under Part II to do what they cannot lawfully do under that collective agreement, i.e., to interfere with their employer’s right to manage its work force and, more particularly, assign work and determine work standards, including safety. It would defeat all logic and basic common sense to allow employees to rely on the provisions of Part II of the Code to refuse work assignments based on a subjective assessment of a fellow worker’s ability to perform the tasks assigned.

"Let us recall the situation that existed in [the case of] Antonio Almeida. That case involved a passenger service attendant who had refused to work on the grounds that perceived harassment, verbal abuse, discrimination and ostracism directed against him by fellow employees constituted a danger to his mental and physical health. The board confirmed the safety officer’s decision that these conditions did not constitute a ‘danger’ within the meaning of the Code.

"The board’s rationale was as follows:

"In the instant case, the danger perceived by the applicant stems from his anticipation of stress resulting from interaction with fellow employees. The work of a passenger service attendant (a position Mr. Almeida has held throughout his career in the railway industry) clearly requires frequent contacts with fellow employees and passengers. Further, that contact, of necessity, occurs in the relatively confined circumstances of on-board duty and, in the instant case, on-board duty extending to overnight runs.

"If any danger were to be found in the circumstances of this case, it could, in the opinion of the board, only result from interaction between the applicant and fellow employees, which in this particular case is a normal condition of employment."

The Kucher decision seems inconsistent with the direction taken by the Ontario Labour Relations Board, in interpreting the Ontario Occupational Health and Safety Act (OHSA). The leading case in Ontario is Pauline Au v. Lyndhurst Hospital. In this case, Ms. Au claimed that her work was unsafe because she was the subject of sexual harassment. One of the key issues in the case, therefore, was whether the right to refuse unsafe work provisions of the Ontario act included sexual harassment. The board concluded that it did.

What’s interesting about the Au case for the purpose of this article, is the board’s comments about whether conduct by co-workers can result in legitimate claims that work is unsafe. The board held that it can, and in doing so, said the following:

"It is important to recall here that whatever ambiguity there may be about whether stress-producing working conditions, or harassment producing injurious stress, are hazards covered by the OHSA, there is no doubt that working in a manner that may endanger another worker or engaging in rough conduct are activities specifically contemplated as hazardous by the OHSA in section 28(2)(b) and (c) ... In these circumstances, we find that Ms. Au was reporting a hazard of which she was aware..."

The sections referred to in the above quote are as follows:

(2) No worker shall,(b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker; (emphasis added) or(c) engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.

While these sections certainly seem to require that employees not work in a fashion that endangers co-workers, it is not clear that this translates into an employee right to refuse to work with them. For example, the right to refuse unsafe work provisions provide as follows:

(3) A worker may refuse to work or do particular work where he or she has reason to believe that, (a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;(b) the physical condition of the workplace ... in which he or she works ... is likely to endanger himself or herself; or (c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace ... in which he or she works ... is in contravention of this Act ... and such contravention is likely to endanger himself, herself or another worker.

As can be seen, the right to refuse sections seem to be limited to health and safety concerns about things like machines and equipment, rather than the manner in which colleagues work together. This did not seem to stop the board however, from concluding that sexual harassment can constitute a hazard under OHSA. (See also Sharon Moore v. Barmaid’s Arms, where the Ontario board held that a worker in a tavern was entitled to refuse to work where the "hazard" was an abusive customer.)

To sum up then, there is some confusion among labour relations boards about whether workers can use the right to refuse unsafe work to complain about the work practices of co-workers. The federal board seems to have said no. The Ontario board, on the other hand, appears to be prepared to accept employee complaints about co-worker behaviour, where the complainant can make a case that the behaviour may endanger his or her safety.

David Coté is with the employment law group of Baker & McKenzie, Barristers and Solicitors, in Toronto, Ont.

(Sidebar)

What Should Employers Do?

What should an employer do when an employee refuses to work because he or she claims a co-worker’s practices are unsafe?

* First, such complaints need to be taken seriously. Don’t automatically assume that the problem is a simple personality conflict between two employees. If there is a real problem, and management isn’t seen as being proactive, it can lead to substantial exposure.

* If you have a health and safety committee, get a worker member (or worker representative if there’s no committee) involved promptly. In view of cases like the Au and Moore decisions, there’s a good argument that employers are legally obligated to get the health and safety committee involved. Even if there is no legal obligation to involve the health and safety committee, I would still do so. Employers sometimes shy away from involving the committee, reasoning that what the committee members don’t know won’t hurt them. At some point though, the committee will likely hear about the issue, and get involved anyway. You’ll have a lot less credibility with the committee if they feel you are trying to hide something.

* Do an honest investigation.- Ask the worker for details of why he or she thinks the co-worker’s work practices are unsafe. Write down what the employee tells you; date your note and sign it. (Often, these cases end up being adjudicated months later, and the adjudicator will be impressed with the fact that you made notes of the salient facts at the time of the incident.) If possible, get the employee to sign the note too. If he or she won’t sign, ask why not. It may be that he or she is uncomfortable with the way some of the details have been characterized, and minor revisions may alleviate the concern.

- Ask if there are any witnesses to the alleged unsafe work practices. If there are, talk to them, too. Follow the same procedure regarding note taking.

- Once you have the facts, make an initial assessment about whether the worker has a case. For example, if he or she tells you that the co-work refuses to lock out power sources before servicing equipment, there is obviously a problem, and corrective action is needed with the co-worker. At the end of the day, whether there is a legitimate case will obviously depend on the facts.

- Once you’ve made your initial determination, ask the committee meembers what they think, and get their input. The committee members may have a perspective you hadn’t thought about. They will either agree with your assessment or they won’t. If they don’t agree, they may be able to convince you of the strength of their position, or vice versa.

- If agreement is reached, and the consensus is that the co-worker is engaged in unsafe work practices, then corrective action will be required vis-à-vis the co-worker. Depending on the seriousness of the matter, this may involve discipline. At a minimum, it will include appropriate safety training.

- If the consensus is that the co-worker is already working safely, you’ll need to tell complainant. If the worker hears the message from both management and his committee member, it may be easier to accept. If he or she won’t accept the conclusion and continues to refuse to work, discipline may be required. Be very careful here, though. Disciplining the worker runs a high risk of a health and safety complaint alleging that the employer took reprisals simply because he or she raised a safety issue. This doesn’t mean that you shouldn’t discipline the worker; after all, you have a business to run. Just make sure that you are comfortable with your position, and that you recognize the consequences of your actions. You should seriously consider obtaining outside expert advice before taking this step.

- If management and the committee cannot agree on the appropriate course of action, you may have to go to the next level, which involves calling in an inspector. The inspector will make a determination, which can be appealed by either party.

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