Workplace Wire

The Ontario Labour Relations Board (“Board”) recently departed from past jurisprudence regarding the statutory duty of an employer and the MOL to investigate complaints about alleged unsafe working conditions under section 43 of the Ontario OHSA, where the concern in question is inherent in the work or a normal condition of employment of a public sector employee, or otherwise covered by the limitations on and exemptions from work refusal rights in section 43 OHSA.

In the case, Dowling v Hamilton-Wentworth Detention Centre, 2012 CanLII 81181, the Detention Center received an anonymous tip that a zip gun (makeshift firearm) was present somewhere in the prison. While the employer implemented a Level II search to remedy the situation, correctional officers believed that given the security threat a Level IV search was more appropriate. When the employer maintained the Level II search, numerous officers refused to carry out their rounds on the basis that their health and safety was endangered. The refusal continued over several days. A Ministry of Labour inspector decided by telephone, without speaking to workers, and then attended in person to deliver the decision, that the officers did not have the statutory right to refuse to work in the circumstances. Workers appealed the decision under section 61 OHSA.

Ordinarily, sections 43(4) and (7) OHSA require the employer and the MOL inspector to investigate a complaint of alleged endangerment. During an investigation, the OHSA provides that the worker is to remain in a safe place. However, the Board ruled that the duty to investigate does not apply when section 43 as a whole is not applicable, under the provisions of sections 43(1) and (3), as there is no right to refuse work. It is clear that section 43 does not apply to certain workers, such as correctional officers, if the health or safety risk complained of is an inherent part of the work, is a normal condition of employment, or if the refusal to work would directly endanger the life, health or safety of another person. The adjudicator found that the possible presence of a zip gun was inherent in the work and a normal condition of a correctional officer’s job.

Prior jurisprudence of the Board had reasoned that a MOL inspector was still required to investigate the refusal to work in consultation with the employer pursuant to section 43(7) until the safety concern was declared inherent in the work or a normal part of employment or not. In short, an investigation into the threshold question of whether a right to refuse existed or not was required. The reasoning was that an investigation and site visit was required in order to determine that the unsafe working condition complained of was an inherent part of the work or was a normal condition of employment and workers were entitled to refuse or at least rely on their section 43 rights until the threshold question was determined. The obligation of a MOL inspector to attend in person to investigate was eliminated by an OHSA amendment in 2001.

The Board in Dowling v. Hamilton-Wentworth Detention Centre disagreed with prior jurisprudence on the obligation to investigate to determine the threshold question. A more literal interpretation of section 43 was taken. The Board justified its departure by noting that past jurisprudence did not consider the policy reasons for the inclusion of section 43 OHSA. Public sector employees such as police officers, firefighters, and correctional officers are tasked with the protection of others and ensuring public safety. Their work is more dangerous. Their health and safety is given less protection. The protection of others (the public, other workers) is dependent upon those persons doing their jobs despite the dangers. Any refusal to work would put the lives of others and public safety at risk. There is a limited right to refuse work, even if the work is dangerous, and even if the employer is violating the OHSA. Section 43 work refusal rights do not apply in these situations. The Board adjudicator clearly stated: “I do not mince words: the Legislature would rather a worker in this special category of professions have different health and safety rights than have a  member of the public or someone under their care be hurt”.

Although it was strenuously argued that it is necessary to conduct an investigation into the threshold question of whether an unsafe workplace condition is inherent in work or a normal part of employment, the Board clearly found that there was no statutory requirement to do so. Further, allowing correctional officers, police or firefighters to await the results of an employer or MOL investigation into this question, before resuming their work duties would be contrary to the policy reasons behind section 43. Ultimately, ruled the Board, a correctional officer (or other public sector worker whose right to refuse is limited) can raise a complaint or concern. If they refuse to work when he or she is faced with an unsafe work condition, the gamble is that if the safety concern is inherent in the work or a normal part of employment, the correctional officer could face employment consequences such as disciplinary measures.

For further information about this case or any other occupational health and safety matter, please contact Cheryl Edwards (cedwards@heenan.ca) or Daniel Mayer (dmayer@heenan.ca).