When unionized workers disagree with a supervisor’s directive to work, they are expected to “work now, grieve later”. However, a major exception to this rule is where the work refusal is based on health and safety concerns. Under the province’s Occupational Health and Safety Act, as well as under the approach developed by arbitrators, workers with an honest belief that a work order will put them in danger may refuse the order.
In one recent case, however, it was the way the order itself was given that was alleged to have created the dangerous situation. In Lennox Industries (Canada) Ltd. v. United Steelworkers of America, Local 7235 (March 3, 1999), the worker grieved a two-day suspension for insubordination. His grievance contended that his refusal to work had been justified by health and safety concerns.
At the hearing, the supervisor and the grievor gave conflicting evidence. According to the supervisor, while investigating a slowdown in the production line, he was told that the grievor had no parts and was unable to perform any work. After the supervisor had located some parts, the grievor completed one unit of work, then refused to do anything else. He gave no reason for his refusal. Eventually, the supervisor claimed, the grievor did raise safety concerns, but gave no indication as to what was unsafe. Because the supervisor felt that the grievor was working on the same equipment and under the same conditions as he always had, he decided that nothing needed to be investigated, and refused to summon the health and safety representative.
According to the grievor, he could not perform any work because his area was jammed with units. When the line began to move, the grievor started work on a unit, and told the supervisor he could leave. The supervisor said, “I’m not going anywhere” and ordered the grievor to continue working. The grievor told the supervisor that, by standing one foot away from him and “hollering, coercing and intimidating” him, the supervisor caused his hands to shake. This created an unsafe situation in which he could cut himself on the sharp edges of the units. The supervisor refused to call the health and safety representative and disciplined the grievor for insubordination.
The arbitrator found the grievor’s version of events to be the more credible. She noted that contemporary records made by the supervisor indicated that the grievor had stated that the supervisor’s proximity to him made him feel unsafe in resuming his work.
THE LEGISLATION AND THE TEST APPLIED BY ARBITRATORS
Subsection 43(3) of the Occupational Health and Safety Act sets out a number of circumstances where a worker may refuse to work, including where the worker “has reason to believe that … the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself”. Under subsection 43(4), the refusing worker “shall promptly report the circumstances of the refusal to the worker’s employer or supervisor who shall forthwith investigate the report in the presence of the worker and … a health and safety representative… “.
When the Act does not apply, arbitrators apply a similar four-part test to determine whether the refusal was justified:
2. Did the grievor communicate this belief to the supervisor in a reasonable and adequate manner?
3. Was the grievor’s belief reasonable in the circumstances?
4. Was the danger sufficiently serious to justify the action the grievor took?
A “SUBJECTIVE BELIEF OF DANGER”, A VIOLATION OF THE ACT
As the grievor had admitted refusing to work, the issue was whether his refusal was justified under either the Act or the arbitral jurisprudence. In answer to this question, the arbitrator held that the grievor had a subjective belief that he was in an unsafe situation:
Moreover, the arbitrator found that the grievor, when asking for the health and safety representative, had indeed reported that the reason for his refusal was the proximity of the supervisor. This obliged the supervisor to investigate the complaint in the presence of the representative. When he refused to do so, this was a violation of the Act, as was his decision to discipline the grievor.
The arbitrator further held that, in the event the Act did not apply, the grievor’s claim passed the four-part test from the arbitration case law. Accordingly, she allowed the grievance and ordered that the grievor’s suspension be rescinded.
In Our View
This case demonstrates the importance of educating supervisors about how to handle work refusals and, it might be added, about how not to give an order to work. Employers of unionized workplaces should bear in mind that, even when the provisions of the Occupational Health and Safety Act do not apply, the test applied by arbitrators parallels the Act.
It should be noted that, for purposes of subsection 43(3) of the Act, the arbitrator was not required to determine whether, objectively, the grievor was in any danger, but only whether he had a subjective belief that he was in danger. The next step was to determine whether, in requesting the presence of the health and safety representative, the grievor had reported “the circumstances of the refusal” to the supervisor. Once the arbitrator determined that the grievor had in fact communicated the reason for his refusal, the grievance was decided as, at this point, the Act obliged the supervisor to investigate in the presence of the health and safety representative and barred any reprisals against the grievor.