RIGHT TO REFUSE – A CASE STUDY

PLEASE NOTE: THE RIGHT TO REFUSE UNSAFE WORK IS AN INDIVIDUAL RIGHT UNDER THE CODE AND EACH CASE IS DECIDED ON ITS OWN MERITS. THE FOLLOWING IS PROVIDED FOR INORMATION PURPOSES ONLY.
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The following is a synopsis of a decision of the “Canada Appeals Office on Occupational Health and Safety”;

The appeal was made in regards to a decision rendered by HSO Helen Kosola on April 2nd, 2003 following the employee’s refusal to work.

The work refusal (a CP Rail Crew) was based on the concern of being involved in an accident while being transported by taxi in inclement weather conditions from Thunder Bay Ontario to Ignace Ontario, a distance of some 235 km.

It was the Train Crew’s view that traveling by taxi, under the weather conditions present, put them in peril.

THE INITIAL DECISION:

In her decision to reject the position of the Train Crew, HSO Helen Kosola, the investigation safety officer, at the time, relied, in part, on the following;

“A public highway is not a work place under the control of an employer.

The employer does not control the weather conditions to which an employee may be exposed.

The Ontario Provincial Police have the authority to close the highway under extreme weather conditions.

Environment Canada described the weather in Thunder Bay at the time of the refusal as, partial fog depositing ice.

There was no weather advisory from the OPP cautioning against travel.

Weather conditions in Thunder Bay at the time of the investigation were cloudy with some clear breaks.

The employer consults with Environment Canada weather watch before making a decision to dispatch a crew.

Information gathered that day by the employer was that the highway was open and weather conditions would not preclude travel by car

If necessary, employees are able to make radio contact en route.

The taxi driver had eighteen months experience as a taxi driver.

The taxi company uses more experienced drivers as well as newer vehicles to do the highway runs. The taxi Company takes into consideration the number of hours the driver has already been on shift.”

THE APPEAL:

The Train Crew, represented by Mr. Mike Church (of the law firm of CaleyWray) appealed the decision of HSO Helen Kosola.

Mr. Church (in referencing various jurisprudence) argued among other things, that the safety Officer did not take into consideration that any potential hazard or condition or future activity can constitute danger and,

The safety Officer did not find a CP official policy on the transportation of employees during various weather conditions.

Mr. Church held that;

“while the risk of being injured in an accident is present anytime an employee travels by car, that risk is normally low. However, when a car is required to travel through inclement weather, the risk of an accident is significantly increased. Inclement weather may include freezing rain, dense fog, or heavy snow”


THE DECISION:

Based on the testimony of the two employees the appeals Officer found that;

“the employees were traveling by taxi on an unlit road;

the headlights on the taxi were improperly aligned, therefore reducing visibility;

because of the fog and improper alignment of the taxi’s headlights they could not see the median line;

there was very heavy fog and freezing rain present;

visibility was impaired to the point of being reduced to 20 to 30 feet or less;

there was a near collision with a transport truck and the taxi; and finally,

because of the poor visibility, the taxi driver had difficulty to orient himself and find a safe place to turn around”

As a result of “these facts” the appeals Officer determined;

“the danger can be prospective to the extent that the hazard or condition or activity is capable of coming into being, not as a mere possibility but as a reasonable one, and that the action is reasonably expected to cause injury or illness to a person exposed to it before the hazard can be corrected or the activity altered.”

On that basis the appeals Officer stated;

“a potential hazard could reasonably happen, the hazard being that of a traffic accident and

the employee could reasonably be exposed to it as the employees are present in the vehicle being driven in the inclement weather;

It could reasonably be expected that this hazard (a traffic accident), would cause injury or illness to the employee; and finally,

It is reasonable to believe that the injury or illness would occur before the hazard or condition could be corrected or the activity altered.”


The appeals Officer therefore concluded;

“CP employees are required to travel by road in inclement weather conditions exposing them to the potential hazard of an accident which can reasonably be expected to cause injury before the conditions are corrected or the activity altered.”

In reaching the above conclusion the appeals Officer issued the following directives to CP;

“Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Code, to immediately take measures to correct the hazard, condition or alter the activity that constitutes a danger.

You are HEREBY FUTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, to immediately cease to have employees travel by road during inclement weather conditions, until this direction has been complied with. The employer is to report to health and safety officer Kosola or another health and safety officer when he is in compliance with this direction.”

MY VIEW:


As earlier stated the right to refuse is an individual right under the Code and each case must be viewed on its own merits.

The above case clearly accepts the principle that;

The right to refuse unsafe work is not restricted to “present” danger but may also include reasonable expectations that there is a future risk of “danger” in regards to the employer’s work directives; this includes being directed by the employer to taxi in inclement weather.


Rex Beatty