FPSLREB Decisions

Jurisdiction - Occupational health and safety - Complaint under section 133 of Part II of the Canada Labour Code (Code) alleging a violation of section 147 thereof - Alleged retaliatory action taken against the employee for invoking his right to refuse to work under section 128 - Remedy - the complainant, who had a prosthetic leg, invoked his right to refuse to work under section 128 of the Code on October 13, 1999, because he believed that inadequately secured carpet tiles in his workplace constituted a danger to him, particularly in light of his disability - following his work refusal, his superiors restricted where he could go in the workplace pending the installation of new carpets - on November 8, 1999, the safety officer concluded that the current flooring no longer constituted a tripping hazard - at a meeting with his superiors on November 9, the complainant agreed to use his walker while walking on the carpeted area in the workplace - nonetheless the employer maintained the restrictions on where the complainant could go in the workplace - the complainant suffered from stress arising from his isolation - as a result, he was absent from the workplace from November 10, 1999, until January 31, 2000, either on sick leave or annual leave - on December 1, 1999, the complainant filed a complaint against the employer under section 133 of the Code alleging a violation of the prohibitions contained in section 147 - the complainant sought the return of his sick leave and annual leave credits - the employer claimed that the Board lacked jurisdiction to entertain this complaint as the employer's actions did not fall within the prohibitions set out in section 147- the employer also submitted that the Board could not entertain any request for the return of sick leave which the complainant took following the filing of his complaint on December 1, 1999 - the Board found that when the complainant refused to work he had reasonable grounds to believe that a condition existed in the workplace which constituted a danger to him - the Board pointed out that, by virtue of subsection 133(6) of the Code, the onus was on the employer to prove that the imposition of the penalty was truly unrelated to the work refusal in light of the fact that the employer's actions were proximate to the work refusal - having considered all the evidence as well as the submissions of the parties, the Board concluded that the employer imposed a penalty upon the complainant contrary to the prohibitions contained in section 147 of the Code when it maintained his isolation after the declaration by the safety officer on November 8, 1999, that the current flooring was no longer considered to be a hazard - the employer's misconduct was of a continuing nature and extended beyond the date the complainant filed his complaint - the penalty imposed on the complainant by the employer's decision to maintain him in isolation created a high level of stress at work and this was directly responsible for his incapacity to perform his duties between November 10, 1999, and January 31, 2000, resulting in the utilization by the complainant of his sick leave and annual leave credits - this created a financial loss for the complainant - the Board ordered the employer to restore to the complainant the sick leave and annual leave credits used by him to cover his absence for this period of time. Complaint allowed. Cases cited: Canada Post Corporation v. Jolly, [1992] 87 di 218 (C.L.R.B.); DiPalma v. Air Canada, [1996] 100 di 89 (C.L.R.B.); Baker v. Polymer Distribution Inc. (2000), CIRB Decision No. 75.