FPSLREB Decisions

Introduction

[1]      This matter deals with complaints pursuant to section 133 of the Canada Labour Code. The Complainants, Linda Kinhnicki and Terry Dupuis, exercised their right to refuse to work pursuant to section 128 (1) of the Code, and left the work place in the afternoon on October 11, 2001. Prior to the Complainants leaving the workplace, a manager consulted a Canada Health and Safety officer by telephone regarding the situation. During the telephone call the Health and Safety officer advised that it was his opinion a danger did not exist in the work place. Subsequently, the Employer, Canada Customs and Revenue Agency, deducted the Complainants for two hours of pay for the work missed. In their complaints the Complaints allege they were relying upon their right to refuse to work on October 11 and claim the deduction from their wages was a violation of section 147 of the Canada Labour Code.

Facts

[2]      The essential facts were not in dispute. However, the parties' respective cases did not have identical perspectives or focuses.

[3]      On October 11, 2001, there was a temporary shut-off of the water supply to the building in which the Employer's Saskatoon office was located. The office was advised at 12:09 p.m. that the water would be shut-off during the afternoon; no information was available at that time regarding the duration of the water shut-off. The Director of the Saskatoon office was attending meetings in Winnipeg at the time and accordingly, the Acting Director, Mr. Randy Pangborn, called a meeting at 12:45 p.m. of a number of managers and union representatives, including the available members of the Occupational Health and Safety Committee. The initial purpose of the meeting was to receive details of the water shut-down and to develop plans to address it. It was decided that additional information should be collected and the meeting would resume in an hour. In the interim, an e-mail was directed to all team leaders regarding alternative washrooms facilities and it was ascertained that the water would remain shut-off for the balance of the day.

[4]      The parties then met again at 2:10 p.m. Management advised the office would not be closing, that arrangements had been made for the employees to utilize the washroom facilities at City Hall, and that water would be brought in for the staff if water service was not restored by the next morning. Ms. Kinhnicki and Mr. Dupuis expressed concerns regarding health and safety because the sprinklers were not working, people were continuing to use the bathrooms on the premises, and because they did not think the alternate bathroom arrangements were suitable.

[5]      During the meeting the Employer decided to consult a Canada Health and Safety officer regarding the water shut off and the concerns raised. At about the same time, Mr. Brian Graves, Assistant Director Revenue Collection, commented that there were too many people in the meeting room. As a result of his comment, except for Ms. Kinhnicki and Mr. Dupuis, all of the union members, including the union representatives on the Occupational Health and Safety Committee, left the meeting. Mr. Casey Peters, Assistant Director of Finance & Administration, then telephoned a Health and Safety Officer, Mr. George Trask, to report the situation and receive his advice. Mr. Trask advised potable water should be brought in immediately (and it was). Ms Kinhnicki asked to speak with Mr. Trask about her safety concerns regarding the non-operational sprinklers and the washroom issues. In addition, she asked the Health and Safety Officer to attend at the premises to make an inspection. The Health and Safety Officer stated he was not able to attend at the premises. He also stated the water sprinklers were only to protect the employer's property, that arrangements had been made for alternate washrooms, and that his opinion was that no danger existed. His comments and opinion were conveyed to all present, including Ms. Kinhnicki and Mr. Dupuis.

[6]      Ms. Kinhnicki and Mr. Dupuis, being executive members of one of the unions, advised the Employer, that in their respective personal capacities, they did not feel the work place was safe. They then left work approximately two hours before the end of the workday.

[7]      The Director, Ms. Arlene White, returned to the office on October 12. She had been apprised previously of the situation by the Acting Director, Mr. Pangborn. A meeting was held in the morning of October 12 and was attended by the management members, the members of the Occupational Health and Safety Committee, Ms. Kinhnicki, Mr. Dupuis and Mr. Trask, the Health and Safety Officer. Mr. Trask delivered a letter (Exhibit A-1) setting out his position that the workplace was not unsafe and discussions followed. Ms. White was concerned about the tenor of the meeting. She had reservations about the approach the Health and Safety Officer was taking with respect to Ms. Kinhnicki and Mr. Dupuis, and she felt that no progress was going to be made at the meeting. She instructed the Occupational Health and Safety Committee to select two of their members - one management representative and one union representative - to prepare a report on the matter.

[8]      Following the meeting, Director White met with the Complainants to discuss their reasons for refusing to work.

[9]      On October 15, 2001, the report requested from the Occupational Health and Safety Committee by Director White was submitted (Exhibit E-22). It concluded "we cannot affirm that the workplace was safe on the afternoon of October 11". Included in the report was a summary prepared by Ms. Sandra McNiven, a union member of the Occupational Health and Safety Committee. She confirmed in her evidence that she concluded there was restricted access to the street for emergency vehicles because of the two construction sites.

[10]      On October 18, 2001, the Health and Safety Officer submitted his investigation report (Exhibit A-2). In his report, the officer concluded he "consider[ed]; that a danger did not exist".

[11]      As a result of her discussions with the Complainants, and her review of the reports, Ms. White concluded that neither Complainant was happy about the manner in which the issue of the water shut-off was handled. They were concerned about the level of confusion and felt that management should have been better equipped to handle the situation. Ms. White testified that while the Complainants stated they did not agree with Mr. Trask's conclusions, the fact they were not appealing his decision meant to her that they ultimately agreed the workplace was not unsafe. Ms. White also knew that Ms. Kinhnicki did not approve of the manner in which Mr. Trask handled the issue. She testified that she did not appreciate Mr. Trask's demeanour at the October 12 meeting; she felt that Mr. Trask was addressing Ms. Kinhnicki in a disciplinary tone and noted that, as a result, she had refocused the meeting. Ms. White concluded there was a lot of confusion surrounding the issue of the water shut-off, that the action taken by the Complainants was not malicious, nor was their action intended to harm the Employer. However, she felt obliged to deduct two hours pay for work not done, and that is what she did. The Complainants were notified of Director White's decision by correspondence dated October 25, 2001 (Exhibits C-12 and C-13), which noted:

The time sheet for your 2 hour absence has been amended to reflect 9850 "Unauthorized absence".

At this time, I would also like to advise you that no disciplinary action will be taken for this absence.

[12]      Neither Ms. Kinhnicki nor Mr. Dupuis testified at the hearing. However, their concerns at the time in question were contained in the evidence of many of the other witnesses.

[13]      Other evidence provided details of the confusion that occurred in addressing the issue and problems with occupational health and safety processes in general at the work place. Although the management team requested members of the Occupational Health and Safety Committee attend the meetings, management did not appear to appreciate the mandate of that Committee or seek its specific assistance according to section 128 of the Canada Labour Code. During the second meeting, before the Health and Safety Officer was contacted, Mr. Brian Graves, stated there were too many people present and suggested people leave. According to the evidence of Ms. Barb Olyniuk, members of the union, including the members of the Occupational Health and Safety Committee, understood the suggestion to be a direction and accordingly, they left the meeting. The management team appeared to be unsure of the protocol for assessing the situation and failed to instil confidence in those present at the meeting. The management members of the Occupational Health and Safety Committee were inexperienced in their safety responsibilities and had not received sufficient or any training. The Occupational Health and Safety Committee had not been actively - or perhaps the better adjective is adequately - functioning in the workplace. Lastly, Director White testified the Occupational Health and Safety Committee had not carried out her express instructions, given approximately a year before this incident, to develop a protocol document to address health and safety issues, notwithstanding a number of reminders.

[14]      Evidence regarding the work place building, the distribution of employees within it, and a description of the employees' workspace was elicited and presented by Director White. The Employer occupied an entire six-storey building designed with a center stairwell and elevator shaft. The total rentable space amounted to 72,635 square feet, with approximately 67,000 square feet of useable space divided into approximately 11,000 to 12,000 square feet per floor. With the exception of the main floor, most of the space on the remaining five floors consisted of work cubicles with partial walls that accommodated slightly fewer than 80 employees per floor. In addition there were offices generally located at each of the four corners of floors two through six. The total complement of employees in the building was approximately 421.

[15]      The water shut-off was in relation to the repair of a water main located in the street the work place was situated on. There was also construction ongoing in the same block that interrupted the sidewalk traffic flow and took up the parking lane on the same side of the street as the work place was located on.

[16]      Evidence was also given about the alternate bathroom arrangements made for the employees. Arrangements had been made for the employees to utilize the public washroom facilities at City Hall, located less than one block away. The evidence was the walk between the two buildings took about 11⁄2 minutes and the afternoon was a warm fall day requiring only a sweater for warmth. The public washroom facilities at City Hall consisted of 6 toilets, 4 sinks and two urinals. No evidence was presented regarding how, or if, these toilets were separated for the genders. In contrast, the washroom facilities at the work place had 18 toilets and 12 sinks for women (3 toilets and two sinks for women on each floor); and 10 toilets, 8 urinals and 12 sinks for men (2 toilets, 1 urinal and 2 sinks for men on floors one to four; and 2 urinals, 1 toilet and 2 sinks for men on the fifth and sixth floors). There was also evidence that many of the employees left the workplace for their breaks and went to coffee shops in the vicinity that would provide those employees with alternate washroom facilities.

[17]      The Employer's own sanitation policy was filed as Exhibit U-16. At paragraph 3.1 it specifies the minimum number of toilets, in keeping with the National Building Code, for office workplaces with over fifty employees of each sex, shall be 3 water closets for each sex, plus 1 additional water closet for each additional increment of 50 persons of each sex. Based upon the number of 421 employees, and without any information regarding the number of each gender, the Employer's own standards indicate there should be roughly 12 accessible water closets. Paragraph 3.2 of the Sanitation Policy also provides the toilet rooms shall not be located more than 60 meters from and not more that one story above or below each work place. Lastly, I note that paragraph 2.3 provides that where the water supply is temporarily interrupted, the Employer will establish contingency procedures in consultation with the appropriate occupational safety and health committee.

[18]      The evidence disclosed that notwithstanding the closure of the washrooms in the building, they had still been used and were left in an unsanitary condition throughout the day.

[19]      The Treasury Board policy on Fire Protection (effective 1994-006-04) was filed. It demonstrates departments must conform to the National Fire Code of Canada and the National Building Code of Canada. Filed in argument was FC 403, Standard for Sprinkler Systems, November 1994, which notes in paragraph 1.1 the purpose is as follows:

1.1 Purpose

This standard describes the requirements for the design, construction, installation, inspection testing and maintenance of sprinkler systems in the Government of Canada property to minimize risks to life and property and to protect and conserve the Government's financial position.

[20]      Section 1.2 provides the standard applies to all departments and agencies. I do not propose to deliberate on the matter of the actual standard for the sprinkler system in the Employer's building. I believe it is sufficient for the purposes of this case to note there are established standards for sprinkler systems, the Employer's building had a sprinkler system, and that one of the express purposes of the established sprinkler policy is to minimize risks to life. I am not suggesting that a water shut-off, which results in a temporarily non-functioning sprinkler system necessarily creates a danger to the health or safety of employees. The significance of this evidence is that it was one factor, among all others, that existed in the workplace at the time in question, and that accordingly, may have been a legitimate concern for the Complainants.

Arguments

The position of the Complainants

[21]      As mentioned at the outset, the complaints are under section 133 of the Canada Labour Code, and allege the Employer breached section 147 thereof in deducting two hours of pay for work missed while the Complainants were exercising their rights under section 128(1).

[22]      The Complainants' position was the conditions existing in the work place on the afternoon of October 11, 2001, were unsafe and the Employer failed to take reasonable steps in light of all the circumstances that existed on that afternoon. With respect to the failure of management to take reasonable steps, the representative of the Complainants relied upon the following facts: the Employer failed to exercise due care with respect to its legal obligations and its own policies; the management team was unaware of its duties and responsibilities with respect to occupational health and safety issues; and many of the same management team remained uninformed of an employer's duties and responsibilities at the date of the hearing.

[23]      In addition, the Complainants' representative noted the management team did not make an independent evaluation of the situation. The team relied upon the advice of the regional and national office personnel, who had no first hand knowledge of the situation. The management team also neglected to utilize the workplace Occupational Health and Safety Committee or seek any advice or assistance from it.

[24]      With respect to the manner in which the water shut-off issue was handled, the Complainants' representative stated they viewed the unfolding of the events, including the decisions taken by management, to be a failure of the Employer's duty of care to its employees.

[25]      The Complainants' representative relied upon sections 122.1 and 124 of the Canada Labour Code, a number of codes containing federal standards, and the Treasury Board Policy on Fire Protection. He invited a purposeful interpretation of the Canada Labour Code be applied to the case in order to vindicate the action taken by the Complainants and to direct the Employer to pay the wages deducted.

The Position of the Employer

[26]      Counsel for the Employer's position was that there was no reasonable cause for the Complainants to believe the workplace was unsafe. The decision of the Health and Safety Officer, Mr. George Trask, was binding upon the parties, and was issued and communicated to the Complainants prior to their departure from the workplace. Accordingly, the Complainants' departure was a contravention of the Canada Labour Code. Given those circumstances, he maintained the Employer was justified in deducting two hours pay for time not worked from the Complainants' wages.

[27]      Authorities relied upon: Evans and Treasury Board (Solicitor General Canada - Correctional Service), Board file No. 160-2-14, (1987) 11 PSSRB Decisions 8 (Digest), [1989] C.P.S.S.R.B. No. 98 (W.L. Nisbet,Q.C.); N. McCann and Treasury Board (Transport Canada) Board File No. 160 -2-42, (1991) 20 PSSRB Decisions 4 (Digest), [1991] C.P.S.S.R.B. No 313 (L. M. Tenace); and Sheila Green and Air Niagara Express Inc., CLRB Dec. No. 983 (December 18, 1992).

Issue

[28]      The primary issue, as presented in the complaints filed pursuant to section 133 of the Canada Labour Code, is whether the deduction of pay for the hours not worked is a breach of section 147. Based upon the evidence and the arguments on behalf of the Complainants and the Employer, the following specific questions must be addressed:

1)	What constitutes "a danger" under sections 128 of the Code;
2)	Did the Complainants meet the requirements of sections 128 and 129;
3)	Has the employer discharged its onus of proving that it cut the complainants' pay for reasons other than the employees having exercised their right to refuse under the Code;
4)	If the answer to question 3) is affirmative, what is the appropriate remedy.

Decision

1) What constitutes "a danger" under sections 128 of the Code:

[29]      Section 128 of Part II of the Code provides:

     Refusal to work if danger

128.   (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that

(a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;

(b) a condition exists in the place that constitutes a danger to the employee; or

(c) the performance of the activity constitutes a danger to the employee or to another employee.

No refusal permitted in certain dangerous circumstances

(2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if

(a) the refusal puts the life, health or safety of another person directly in danger; or

(b) the danger referred to in subsection (1) is a normal condition of employment.

…

Report to employer

(6) An employee who refuses to use or operate a machine or thing, work in a place or perform an activity under subsection (1), or who is prevented from acting in accordance with that subsection by subsection (4), shall report the circumstances of the matter to the employer without delay.

Select a remedy

(7) Where an employee makes a report under subsection (6), the employee, if there is a collective agreement in place that provides for a redress mechanism in circumstances described in this section, shall inform the employer, in the prescribed manner and time if any is prescribed, whether the employee intends to exercise recourse under the agreement or this section. The selection of recourse is irrevocable unless the employer and employee agree otherwise.

Employer to take immediate action

(8) If the employer agrees that a danger exists, the employer shall take immediate action to protect employees from the danger. The employer shall inform the work place committee or the health and safety representative of the matter and the action taken to resolve it.

Continued refusal

(9) If the matter is not resolved under subsection (8), the employee may, if otherwise entitled to under this section, continue the refusal and the employee shall without delay report the circumstances of the matter to the employer and to the work place committee or the health and safety representative.

Investigation of report

(10) An employer shall, immediately after being informed of the continued refusal under subsection (9), investigate the matter in the presence of the employee who reported it and of

(a) at least one member of the work place committee who does not exercise managerial functions;

(b) the health and safety representative; or

(c) if no person is available under paragraph (a) or (b), at least one person from the work place who is selected by the employee.

If more than one report

(11) If more than one employee has made a report of a similar nature under subsection (9), those employees may designate one employee from among themselves to be present at the investigation.

Absence of employee

(12) An employer may proceed with an investigation in the absence of the employee who reported the matter if that employee or a person designated under subsection (11) chooses not to be present.

Continued refusal to work

(13) If an employer disputes a matter reported under subsection (9) or takes steps to protect employees from the danger, and the employee has reasonable cause to believe that the danger continues to exist, the employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity. On being informed of the continued refusal, the employer shall notify a health and safety officer.

Notification of steps to eliminate danger

(14) An employer shall inform the work place committee or the health and safety representative of any steps taken by the employer under subsection (13).

[30]      We often regard the word "danger" as having a significant element of harm. The Random House Dictionary, unabridged edition, 1967, contemplates that meaning together with a less serious meaning. It defines danger in the following manner:

n.   1. liability or exposure to harm or injury; risk; peril. 2. an instance or cause of peril. . . .

- Syn. 1. DANGER, HAZARD, PERIL JEOPARDY imply some evil or harm which one may encounter. DANGER is the general word for liability to all kinds of injury or evil consequences, either near at hand and certain, or remote and doubtful: to be in danger of catching cold or of being killed. . . .
- Ant. 1. safety.

[31]      In considering the meaning to be ascribed to the word 'danger' we must bear in mind the context within which it is employed in the legislation, as well as the word's generally accepted meaning.

[32]      Part II of the Canada Labour Code addresses the rights and obligations of employers and employees with respect to health and safety in the work place. Section 122.1 provides:

122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.

[33]      Section 124 provides:

124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.

[34]      Thereafter, section 125, "without restricting the generality of section 124", outlines more specific standards, some of which are set out hereinafter:

(a) ensure that all permanent and temporary buildings and structures meet the prescribed standards;

…

(i) provide prescribed sanitary and personal facilities;

(j) provide, in accordance with prescribed standards, potable water;

…

(n) ensure that the levels of ventilation, lighting, temperature, humidity, sound and vibrations are in accordance with prescribed standards;

(o) comply with prescribed standards relating to fire safety and emergency measures;

(p) ensure, in the prescribed manner, that employees have safe entry to, exit from and occupancy of the work place;

…

(u) ensure that the work place, work spaces and procedures meet prescribed ergonomic standards;

…

(z.01) ensure that members of policy and work place committees and health and safety representatives receive the prescribed training in health and safety and are informed of their responsibilities under this Part;

…

(z.05) consult the policy committee or, if there is no policy committee, the work place committee or the health and safety representative to plan the implementation of changes that might affect occupational health and safety, including work processes and procedures;

…

(z.07) ensure the availability in the work place of premises, equipment and personnel necessary for the operation of the policy and work place committees [being the health and safety committee]

(z.08) co-operate with the policy and work place committees or the health and safety representative in the execution of their duties under this Part;

…

[35]      Having so addressed the purpose of the legislation, the obligations and some of the standards employers are required to meet, section 128 (and 129) of Part II then gives an employee the right to refuse to work if the employee has reasonable cause to believe that a condition exists in the work place that constitutes a danger to the employee.

[36]      As many of the duties and obligations imposed upon employers under section 125 include adherence to national standards relating to building requirements, sanitation and fire, and one of the specified purposes of Part II is to prevent injury to health, it is my opinion that the word 'danger' employed in the legislation has a broad meaning. Had only the serious harm connotation of the word 'danger' been contemplated, it would have been simple and natural to utilise an adjective to modify the word, or alternatively to use a stronger word.

[37]      I have also considered the language in sections 147 and 147.1, which provide:

Disciplinary Action

General prohibition re employer

147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee's rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

(a) has testified or is about to testify in a proceeding taken or an inquiry held under this Part;

(b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or

(c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part. R.S., 1985, c. L-2, s. 147; R.S., 1985, c. 9 (lst Supp.), s. 4; 2000, c. 20, s. 14.

Abuse of rights

147.1 (1) An employer may, after all the investigations and appeals have been exhausted by the employee who has exercised rights under sections 128 and 129, take disciplinary action against the employee who the employer can demonstrate has wilfully abused those rights.

Written reasons

(2) The employer must provide the employee with written reasons for any disciplinary action within fifteen working days after receiving a request from the employee to do so.
2000, c. 20, s. 14.

[38]      Section 147 allows an employer to take disciplinary action where an employee has, in the employer's mind, wilfully abused their rights.

[39]      Section 147.1, as the heading in the legislation states, provides another avenue of redress to an employer after all the processes contemplated in sections 128 and 129 have been concluded. An employer may discipline an employee who has wilfully abused his or her right to refuse to work.

[40]      The combined effect of sections 147 and 147.1 has two purposes. First, to require employees to comply with the prescribed processes in sections 128 and 129, by making the employee subject to immediate sanctions or discipline if there is non-compliance. (See N. McCann and Treasury Board, supra). Secondly, to allow for the assessment of whether a danger actually existed to proceed through all review levels before considering if discipline should be imposed. Even then, the discipline is limited to instances where there was wilful abuse of the right to refuse to work. The requirement that the employer demonstrate the wilful abuse indicates a strong bias in favour of allowing employees the benefit of the doubt when they are relying upon the right to refuse to work pursuant to section 128.

[41]      If that is correct, then the phrase "has reasonable cause to believe that a condition exists . that constitutes a danger" in section 128(1), must be interpreted to reflect that legislative intention. That is, employees refusing to work are not limited to circumstances where a real danger actually exists. They are afforded the additional benefit of being able to err in their assessment of the situation, providing they believed a danger existed and had reasons, based upon the conditions in or near to the work place at the time, for that belief. (See generally McCann and Evans, supra.) To hold employees invoking their rights under section 128 to a higher standard would be contrary to the more recent legislative intention clearly reflected in section 147.1. To preclude the imposition of discipline upon an employee who errs in assessing a danger existed, but nevertheless, was acting reasonably and in good faith, is an important element in the Part II scheme if the ultimate concern is ensuring safety in the work place through the co-operation of the stakeholders - the employees and the employers.

[42]      Given the broad scope of employers' duties under sections 124 and 125, and the specific duties quoted above, it appears reasonable cause for a belief that conditions in and around the work place constituted a danger existed when the water supply to the building was shut off on October 11. (See generally John Pruyn and Canada Customs and Revenue Agency, Board File No. 160-34-64 (L.-P. Guindon), 2002 PSSRB 17, [2002] C.P.S.S.R.B. No. 11; Martin and Treasury Board (Solicitor General Canada - Correctional Service), Board File No. 160-2-49 (L-P. Guindon), (1996) 29 PSSRB Decisions 3 (Digest), [1996] C.P.S.S.R.B. No. 50; Rozon et al. v. Treasury Board (Human Resources Development Canada), Board File Nos. 160-2-67 to 76, (J-P. Tessier), 2002 PSSRB 30, [2002] C.P.S.S.R.B. No. 21; Hutchinson and Treasury Board (Environment Canada), Board File No. 166-2-28535 (J. Potter), (1999) 35 PSSRB Decisions 39 (Digest), [1999] C.P.S.S.R.B. No. 39; Hutchinson and Treasury Board (Environment Canada), PSSRB File No. 160-2-52 (J.B. Turner), (1998) 33 PSSRB Decisions 5 (Digest), [1998] C.P.S.S.R.B. No. 2; Robitaille and Treasury Board (Ministry of the Solicitor General, Correctional Service of Canada), Board File No. 166-2-20997 (J. Galipeault), (1991) 19 PSSRB Decisions 36 (Digest), [1991] C.P.S.S.R.B. No. 114 ; Ladouceur and Treasury Board, Board File No. 160-2-43 (T.O. Lowden), (1992) 22 PSSRB Decisions 4 (Digest), [1992] C.P.S.S.R.B. No. 109.

2) Did the Complainants meet the requirements of sections 128 and 129 of the Code in refusing to work:

[43]      The requirements of section 128 applicable in this case include a reasonable cause to believe that a condition exists in the workplace that constitutes a danger to them (section 128 (1) (b), Bell Canada v. Canada (Labour Relations Board), [1983] 2 F.C. 336, 51 N.R. 20 (C.A.); Roland D. Sabourin (1987), 69 di 61 (CLRB #618); and Canada Post Corp. (1993), 91 di 1 (CLRB #988)); reporting the circumstances of the refusal to work to the employer (section 128 (6); and, if after subsequent steps taken by the employer, the employee has reasonable cause to believe the danger continues to exist, the employee must advise of his or her continual refusal to work. The facts surrounding these requirements and other relevant matters are discussed below, although not in the order set out.

[44]      Reporting: It is clear the Complainants were concerned about the impact of the water shut-off on their health and safety. The specific concerns were about the washroom facilities and the lack of protection from fire sprinklers. Although issues of egress from the building and emergency vehicle access to the building were mentioned in the Occupational Health and Safety Committee Report, and such concerns may have been related to the concern regarding the non-functioning sprinkler system in case of fire, it appears the Complainants did not articulate those concerns. The Complainants did express their concerns the following day to Director White regarding the confusion and the management team's lack of knowledge regarding the proper procedures, but of course, these concerns were not made known to the management team at the relevant time. Nevertheless, I find the Complainants expressed sufficient reasons for their belief that a danger existed so as to comply with the requirement in sections 128 to advise the Employer of the circumstances of their refusal to work.

[45]      Decision by health and safety officer: The call placed to the Health and Safety Officer was the Employer's response to the concerns expressed by the Complainants. This is a procedure contemplated by the Code following a failure to resolve a work refusal after involving the work place health and safety committee pursuant to section 128 (9).

[46]      Failing resolution of the issue after involving the health and safety committee, section 129 addresses the situation where the employee continues to refuse to work. The procedural requirement in that instance is for an investigation by a health and safety officer. In the event the employee is not satisfied after the health and safety officer's investigation and report, subsection 129 (7) provides for an appeal process. Subsection 129(7) also provides that after a health and safety officer decides that a danger does not exist, even though an appeal is commenced, the employee is no longer entitled to refuse to work pursuant to section 128.

[47]      A matter that I questioned, although it was not raised directly by the parties at the hearing, was that the Health and Safety Officer made a decision that a danger did not exist without attending at the work place. The evidence disclosed that the Complainant Kinhnicki specifically requested that the Health and Safety Officer attend at the work place the afternoon in question to investigate the issue, and that he told her he was unable to do so. I also note that had the Health and Safety Inspector attended at the building, he would have observed the construction sites on the street and considered the size of the Employer's premises and number of people in the building.

[48]      Section 129 provides:

Investigation by health and safety officer

129. (1) On being notified that an employee continues to refuse to use or operate a machine or thing, work in a place or perform an activity under subsection 128(13), the health and safety officer shall without delay investigate or cause another officer to investigate the matter in the presence of the employer, the employee and one other person who is

(a) an employee member of the work place committee;

(b) the health and safety representative; or

(c) if a person mentioned in paragraph ( a) or ( b ) is not available, another employee from the work place who is designated by the employee.

Employees' representative if more than one employee

(2) If the investigation involves more than one employee, those employees may designate one employee from among themselves to be present at the investigation.

Absence of any person

(3) A health and safety officer may proceed with an investigation in the absence of any person mentioned in subsection (1) or (2) if that person chooses not to be present.

Decision of health and safety officer

(4) A health and safety officer shall, on completion of an investigation made under subsection (1), decide whether the danger exists and shall immediately give written notification of the decision to the employer and the employee.

Continuation of work

(5) Before the investigation and decision of a health and safety officer under this section, the employer may require that the employee concerned remain at a safe location near the place in respect of which the investigation is being made or assign the employee reasonable alternative work, and shall not assign any other employee to use or operate the machine or thing, work in that place or perform the activity referred to in subsection (1) unless

(a) the other employee is qualified for the work;

(b) the other employee has been advised of the refusal of the employee concerned and of the reasons for the refusal; and

(c) the employer is satisfied on reasonable grounds that the other employee will not be put in danger .

Decision of health and safety officer re danger

(6) If a health and safety officer decides that the danger exists, the officer shall issue the directions under subsection 145(2) that the officer considers appropriate, and an employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity until the directions are complied with or until they are varied or rescinded under this Part.

Appeal

(7) If a health and safety officer decides that the danger does not exist, the employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision, in writing, to an appeals officer within ten days after receiving notice of the decision.
R.S., 1985, c. L-2, s. 129; R.S., 1985, c. 9 (1st Supp.), s. 4; 1993, c. 42, s. 7(F); 2000, c. 20, s. 10.

[49]      In my opinion, that section contemplates that the Health and Safety Officer attend at the work place in order to discuss the matter with the persons involved and review the situation first hand. See Evans and Treasury Board, supra, where Adjudicator W. L. Nisbet, Q.C. noted:

Once a safety officer is notified of a refusal to work, by either the employee who is refusing to work or the employer, he is under a mandatory statutory direction to investigate or cause another safety officer to investigate the matter in the presence of the employer and the employee or his representative.

[50]      A subsequent attendance at the work place does not, in my view, suffice to remedy the initial failure to attend at the work place. Therefore I have concluded that as of October 11, 2001, when the Complainants refused to work, there was no decision of a Health and Safety Officer pursuant to section 129 that a danger did not exist.

[51]      Direction by health and safety officer: However, there was of course the statement made by the Health and Safety Officer that a danger did not exist. Subsection 126 (1) enumerates a number of duties employees have in relation to work place safety. Those duties may generally be stated to include conducting their work in a safe manner, complying with safety policies and directives, co-operating in these issues and reporting safety concerns and contraventions of safety procedures. Of particular note, however, is subsection 126 (1)(i), which provides:

126 (1) While at work, every employee shall

…

(i) comply with every oral or written direction of a health and safety officer or an appeals officer concerning the health and safety of employees.

[52]      In my opinion, this employee duty does not relate in any way to the statement made by the Health and Safety Officer on October 11 regarding the safety of the work place. It is my opinion that this duty relates specifically to directions given by a Health and Safety Officer pursuant to section 145, and more specifically in this case, in relation to subsections 145 (1) and 145 (1.1), which provide:

Direction to terminate contravention

145. (1) A health and safety officer who is of the opinion that a provision of this Part is being contravened or has recently been contravened may direct the employer or employee concerned, or both, to

(a) terminate the contravention within the time that the officer may specify; and

(b) take steps, as specified by the officer and within the time that the officer may specify, to ensure that the contravention does not continue or re-occur.

Confirmation in writing

(1.1) A health and safety officer who has issued a direction orally shall provide a written version of it

(a) before the officer leaves the work place, if the officer was in the work place when the direction was issued; or

(b) as soon as possible by mail, or by facsimile or other electronic means, in any other case.

[53]      That section addresses directions a Health and Safety Officer may deliver in order to prevent harm or in order to remedy an unsafe situation at the work place. The Health and Safety Officer's direction to the Employer to bring in potable water was such a direction; however, his statement that a danger did not exist was not.

[54]      I have concluded that on the afternoon of October 11 the parties were at the section 128 phase of resolving the matter, and that because an investigation pursuant to section 129 had not been conducted by a health and safety officer, the Complainants were entitled to exercise their section 128 rights to refuse to work. The opinion expressed by the Health and Safety Officer over the telephone, without having attended at the work place, did not constitute a decision of a health and safety officer under section 129(4) or a direction pursuant to section 126 that the parties were required to follow.

[55]      Subsequent to the involvement of the Health and Safety Officer on October 11, 2002, the Complainants refused to work and the reasons for their refusal at that time were clear to the Employer.

[56]      Belief of Complainants: The Director, Ms. White, made the decision to deduct the wages of the complainants for their refusal to work during the afternoon of October 11, 2001, based upon the fact they refused to work after the Health and Safety Officer's advice by telephone that a danger did not exist in the workplace. Ms. White also considered the no work, no pay principle and the fact she was unable to locate a provision in the collective bargaining agreement to justify payment to the complainants for hours not worked. It was my understanding from her evidence that she was not particularly happy deducting the two hours of salary from each of the complainants, but felt she had an obligation to do so as a responsible manager. One of the reasons she felt obliged to deduct the wages was that the Complainants had told her they did not intend to appeal the decision of the Health and Safety Officer pursuant to section 129(7) of the Canada Labour Code.

[57]      Having considered the Complainants' conduct in light of all the facts and the legislation, I find there were legitimate concerns regarding the Employer's process in addressing the issue, the actual arrangements the Employer made to address the water shut-off, the impact of those arrangements on the work place, and the process followed by the Health and Safety Officer. Having so noted, I accept the Complainants may not have fully articulated all of these concerns while the issue of the water shut-off was unfolding. The Complainants refusal to work under all of these circumstances was not in my opinion an abuse of their right of refusal. Ms. White, the Director, candidly acknowledged that fact. I find the Complainants had a reasonable cause to believe, and did believe, that a danger existed.

[58]      It should be stated that none of the witnesses, or the parties, suggested the management team acted in bad faith, were negligent, or failed to take its responsibilities seriously. However, I also believe the parties would agree that in the absence of the Director, they are now, and will be in the future, better equipped to handle health and safety issues. While it is my opinion that the primary responsibility with respect to matters of this kind lie with the Employer (see generally sections 124 and 125 of the Canada Labour Code), I invite and urge the unions representing the employees at the workplace to be actively involved in these matters because they are primarily for the benefit of their members. I envisage that in all situations of this kind that it is also incumbent upon the union executive and all members of occupational health and safety committees, to take a proactive role with the employer to resolve these issues. In the case at hand, although the process broke down, the Employer's management team did in fact begin by including the available relevant personnel.

[59]      This is not an appeal of the Health and Safety Officer's decision; therefore, I do not have jurisdiction to interfere with it. However, by way of obiter dicta, I believe it will be useful to assist the parties in making comments with respect to my concerns about the circumstances that gave rise to the complaints. I agree with the position of the Complainants that the management team in charge on the date in question did not demonstrate they were sufficiently well versed in addressing the issue of the water shut-off and its impact on the work place. Nevertheless, in the end result a number of reasonable measures were taken. However, in my opinion (which I appreciate is after the fact) the washrooms in the building should have been locked, or steps taken to prevent employees from using them. Furthermore, I am not sure how reasonable it is to expect an employee complement of approximately 421 to utilize washroom facilities down the block - not to mention first leaving their respective floors and travelling down stairs or elevators, over the course of a four hour or longer work period. This view takes into account the fact these employees were located on six floors of their building, and that there were two construction operations ongoing outside their building that would have interfered, to at least some extent, with the employees' access and egress. The evidence of Ms. Sandra MacNevin, as noted in her report that formed part of the Occupational Health and Safety Committee Report (Exhibit E-22), was that in her opinion the construction operations posed an access problem for emergency vehicles.

[60]      The failure to suitably lock or otherwise close the washroom facilities in the work place, and the influx of users to the City Hall facilities, resulted in the employees being exposed to below acceptable sanitary conditions in those locations and upon return to the work place.

[61]      The representative of the Complainants relied upon the proximity in time of this incident to the attacks on the New York towers on September 11, 2001, as giving more credibility to the concerns expressed by the complainants. However, in light of Ms. White's evidence that she accepted the Complainants were acting in good faith, it is not necessary for me to comment on the effect the September 11^th crisis had or may have had on the those involved or affected by the water shut off incident.

3) Has the employer discharged its onus of proving that it cut the Complainants' pay for reasons other than the employees having exercised their right to refuse under the Code:

[62]      The Employer based its defence on the issue of reasonable cause rather than this issue. While the Employer may have been reluctant in deducting two hours pay for time not worked, and while there is no evidence of disciplinary intention on the part of the Employer, I find that the decision of the Employer was related to the Complainants having exercised their rights under the Code. In the words of section 147, but for the exercise of their rights, the employees would have worked and been paid. I therefore find that the Employer has not discharged the onus placed upon it.

4) The remedy:

[63]      Jurisdiction to grant relief is found in section 134 of the Canada Labour Code, which provides:

134. If, under subsection 133(5), the Board determines that an employer has contravened section 147, the Board may, by order, require the employer to cease contravening that section and may, if applicable, by order, require the employer to

(a) permit any employee who has been affected by the contravention to return to the duties of their employment;

(b) reinstate any former employee affected by the contravention;

(c) pay to any employee or former employee affected by the contravention compensation not exceeding the sum that, in the Board's opinion, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to the employee or former employee; and

(d) rescind any disciplinary action taken in respect of, and pay compensation to any employee affected by, the contravention, not exceeding the sum that, in the Board's opinion, is equivalent to any financial or other penalty imposed on the employee by the employer .

[64]      The Complainants sought recovery of the salary that was deducted for hours not worked on October 11, 2001, and accordingly, I direct that amount of salary be paid to the Complainants and that they be made whole with respect to any entitlements to benefits that may be founded thereon. I also direct that all references to their refusal to work on October 11, 2001, and the deduction of wages in relation thereto be removed from their personnel records and any additional records relating to performance maintained by their supervisors.

[65]      In conclusion, I note the jurisdiction of the Public Service Staff Relations Board to address this issue arises from section 123(2) of the Canada Labour Code, sections 11(1) and (1.1) of the Financial Administration Act, and section 2(1) of the Public Service Staff Relations Act.

Francine Chad Smith, Q.C.,
Board Member

DATED this 26th day of June 2003.