FPSLREB Decisions

Occupational health and safety - Refusals to work - Prison guards - Referral of decisions of safety officers under subsection 129(5) of the Canada Labour Code (Code) - the applicants were employed as correctional officers at a maximum security institution - as the safety officer who conducted the investigation into one work refusal was not available to testify, the Board adjourned the proceedings in relation to that application: (165-2-216) - the remaining seven applicants invoked the relevant provisions of the Code alleging that, on November 22, 1999, a dangerous condition existed in the workplace as minimum staffing was in effect, that is, each unit was only staffed by two correctional officers - this reduction in staffing occurred as a result of staff shortages caused by sick leave, other leave and mandatory training - for obvious reasons, none of the applicants left his post on the day in question - the safety officer investigated the refusals to work on November 24 and 25 when there was no longer a minimum staffing situation in effect - although the safety officer found that there was no danger at the time he conducted the investigation, nonetheless he was concerned by the fact that the employer had not issued safe working procedures on what the staff should do when working in a team of two, three or four correctional officers - the safety officer issued Assurances of Voluntary Compliance to the employer to draw to its attention violations of the Code although he alleged that he had no authority to order the employer to correct them or even to indicate to the employer how it should correct them - subsequently, management determined that units 3 and 4 would no longer have minimum staffing - there would always be three officers assigned to duty on these units - this was due to the configuration of those units - also the units were located away from the main building and there were more inmates in those units - however, minimum staffing continued to be applied to units 1 and 2 - the safety officer referred his decisions to the Board at the request of the applicants - the employer submitted that, as the safety officer had found that no danger existed at the time of his investigation, the Board should confirm the safety officer's reports - the applicants alleged that the safety officer should also have considered whether a dangerous condition existed at the time of the refusals to work - although no dangerous condition existed in the workplace at the time the safety officer conducted his investigation, the Board found that he should also have considered whether a dangerous condition existed at the time of the work refusals - the Board concluded that at the time of the work refusals minimum staffing in units 3 and 4 constituted a dangerous condition in the workplace for the applicants who were required to work there - as a remedy, the Board endorsed the Assurances of Voluntary Compliance issued by the safety officer which had led the employer to modify its minimum staffing policy in relation to units 3 and 4 - the Board confirmed the decisions of the safety officer in relation to units 1 and 2. Decisions of safety officer relating to F.W. Johnson in unit 1 and C.J. Gallant and J.A. MacLeod in unit 2 confirmed.*Decisions of safety officer relating to K. Fletcher and P. Leclerc in unit 3 and L.P. Leblanc and S.J. Richard in unit 4 rescinded.*Cases cited:Kavanagh (165-2-205 to 207); Montani v. Canadian National Railway (1994), 95 di 197 (Can. L.R.B.); Bidulka v. Canada, [1987] 3 F.C. 630 (C.A.); Leblanc v. VIA Rail Canada Inc. (1988), 75 di 156 (Can. L.R.B.); Atkinson v. VIA Rail Canada Inc. (1992), 89 di 76 (Can. L.R.B.); Collard v. VIA Rail Canada Inc. (1993), 92 di 49 (Can. L.R.B.); Lamoureux v. VIA Rail Canada Inc. (1993), 93 di 1 (Can. L.R.B.); McSween v. British Columbia Maritime Employer's Assoc. , (May 14, 1999) Decision No. 15 (C.I.R.B.); Clavet v. Via Rail, [1996] C.L.R.B.D. No. 7 (Q.L.); Brûlé. v. Canadian National Railway Company, (February 18, 1999) Decision No. 2 (C.I.R.B.); Re Ontario Public Service Employee's Union, Local 608, [1997] O.O.H.S.A.D. No. 97 (Q.L.); Re Ontario Public Service Employee's Union, Local 608, [1997] O.O.H.S.A.D. No. 2 (Q.L.); Canada v. Lavoie (1998), 153 F.T.R. 297; Canada v. Bonfa (1989), 113 N.R. 224 (F.C.A.); Stephenson (165-2-83); Evans (165-2-87).