FPSLREB Decisions
Decision Information
Canada Labour Code, Part II (Occupational Health and Safety) - Refusal to work due to dangerous conditions - Section 129(5) of Canada Labour Code - this matter related to a reference to the Board under subsection 129(5) of the Canada Labour Code by the grievor and seven other correctional officers, challenging the reports of two safety officers who had found that " no danger " existed at the time of their investigation into work refusals by these employees of the Dorchester Maximum Security Penitentiary and the Atlantic Institution in Renous - the Board had rendered a decision (2000 PSSRB 86) allowing in part the reference and had found that a danger had existed at the time of the refusal to work - the Attorney General of Canada had applied to the Federal Court of Appeal for judicial review of that part of the Board's decision - in Canada (Attorney General) v. Fletcher et al., the Court allowed the application setting aside that part of the decision of the Board which rescinded the report of the safety officer and found that a dangerous condition existed with respect to Units 3 and 4, and referring the matter back to the Board for a new determination to be made on the basis that the report of the safety officer ought to be confirmed - the Court found that it is only with respect to a danger that exists at the time of the investigation that directions may be given, and therefore, in the case at bar, the Board, having found that no danger existed at the time of the investigation, had erred in law in finding that a dangerous condition existed with respect to Units 3 and 4 - the Court concluded that the only option open to the Board was to confirm the report of the safety officer - in accordance with the Federal Court of Appeal's decision, the Board confirmed the safety officer's report that there was absence of danger on November 22, 1999, in Unit 3 and in Unit 4. Reference dismissed. Case cited: Canada (Attorney General) v. Fletcher et al., 2002 FCA 424.
Decision Content
Canada Labour Code, Part II
- Date: 2003-04-14
- File: 165-2-209 to 216
- Citation: 2003 PSSRB 30
Before the Public Service Staff Relations Board
BETWEEN
KEN FLETCHER, CLAUDE J. GALLANT, FRED W. JOHNSON,
L.P. LEBLANC,
PHILLIPPE LECLERC, JAMES A. MACLEOD,
STEVEN J. RICHARD AND J.R. HEBERT
Applicants
and
TREASURY BOARD
(Solicitor General Canada - Correctional Service)
Employer
Re: Reference under subsection 129(5) of the Canada Labour Code
Before: Yvon Tarte, Chairperson
(Decision rendered without an oral hearing)
[101] On the basis of the foregoing, the Board confirms the reports of the safety officer that there was absence of danger on November 22, 1999 in the case of Fred Johnson in Unit 1, in the case of Claude Gallant in Unit 2, and in the case of James MacLeod in Unit 2. The Board rescinds the report of the investigation officer and finds that a dangerous condition did exist on November 22, 1999 in the case of Ken Fletcher in Unit 3, in the case of Phillip Leclerc in Unit 3, in the case of L.P. LeBlanc in Unit 4, and in the case of Stephen Richard in Unit 4.
The application for judicial review is allowed with costs, that part of the decision of the Public Service Staff relations Board dated September 20, 2000 which rescinded the report of the safety officer and found that a dangerous condition existed with respect to Units 3 and 4 is set aside and the matter is referred back to the Board for a new determination to be made on the basis that the report of the safety officer ought to be confirmed.
[15] That being said however, the existence of a danger at the time of the refusal to work does not in and by itself give the safety officer or, ultimately, the Board, jurisdiction to give directions to the employer with respect to that danger. It is only with respect to a danger that exists at the time of the investigation that directions may be given. In the case at bar, the Board, having found that no danger existed at the time of the investigation, erred in law in finding that a dangerous condition existed with respect to Units 3 and 4. The only option open to the Board was to confirm the report of the safety officer.
[My emphasis]
Yvon Tarte,
Chairperson
OTTAWA, April 14, 2003