Safe working conditions.
All workers have the right to refuse unsafe working conditions without reprisal from their employers. The circumstances in which such a refusal might arise range from environments that are too hot or too cold to lack of safety barricades around dangerous machinery or tripping hazards.
Despite the reprisal protection built into legislation, you rarely hear about non-unionized workers brave enough to refuse unsafe working conditions.
Mark, however, was in a union working for a security company. One day he arrived with his driver in an armored vehicle on the regular run at a mall in Ottawa.
Mark’s job was to leave his driver in the truck and visit various stores inside to pick up cash to be taken away.
It was the middle of December and before visiting his first store Mark noted what he thought was wall-to-wall people in the mall. He had been trained repeatedly that, especially when working alone, his best defence was to try to keep a 25-foot distance from most of the people around him. Avoiding proximity lowers the risk of being ambushed from behind or assault and robbery in any form. By staying a 25-foot radius from people he could better watch for those with hands in their pockets, looking directly at him or zigzagging from store to store, the most likely assailants.
Mark decided that the volume of people made it impossible for him to keep any distance from the people around him and refused to do his pick-ups until he was accompanied by another guard to watch his back.
The union supported Mark’s refusal and forced that refusal to be adjudicated by the Canada Labour Board. It was an important point to them for future potential work refusals. Of course it was also important to the company since paying three guards costs more than two.
The test under the Canada Labour Code that governed Mark’s work refusal is whether the danger was imminent or serious. Unfortunately, Mark forgot to lift up his cellphone and take video at the moment that he made the assessment of how crowded it was and the pictures he took a half hour later did not seem that busy. An independent witness thought that crowd levels were only slightly elevated over normal. On that evidence, the work refusal was not upheld.
No one should need to die to make a living. In 2016, 905 workplace deaths were recorded in Canada. 240,000 claims were accepted for lost time due to work-related injuries or diseases.
As we send our children off into the working world few of us, me included, do enough to educate them about their right to refuse unsafe work conditions.
We might caution them to always practice safe sex, but do we exhort them to walk away from an unsafe situation at work regardless of the consequences?
For non-unionized workers, there is legislative protection against reprisals for having refused work. If a complaint is made, the Ministry of Labour can order reinstatement with backpay and various other heads of damages. Workers in a non-unionized setting know, however, that there are lots of ways to punish an employee without it being provable that the punishment is a reprisal. Employers sometimes assign the resented employee the worst shifts, unreasonably refuse vacation requests or micromanage their performance from that day forward. Whether we are talking about an adult worker dependent on a job to feed their family and pay their rent or a summer student saving for the next year’s school, the thought of actually refusing work is daunting.
Adults might be expected to know that if it is a truly dangerous situation, taking the risk of complying is simply not worth it.
The problem is that when you are young, you think you are immortal. If you have a young person in your household, take time today to tell them you will support them if they ever have to refuse work.
Ed Canning is a labour and employment lawyer with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at email@example.com