Tribunal puts a stop to bus driver’s work refusal

‘A reasonable person wouldn’t see this as a real risk to the worker’s safety’

Tribunal puts a stop to bus driver’s work refusal
Jeffrey R. Smith

Some days, don’t you wish you could just refuse to go to work? Many people have those days, but it usually isn’t a good idea to do so. However, there are circumstances where workers can legally refuse to do their job without facing consequences such as discipline or dismissal.

Every Canadian jurisdiction has legislation that gives workers the right to initiate a work refusal if there is some sort of hazard or dangerous situation that genuinely risks the worker’s health or safety, or if the worker honestly and reasonably believes that to be the case. 

For example, the Canada Labour Code states “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 condition exists in the place that constitutes a danger to the employee.” If a work refusal takes place and a hazard is found, the employer is required to take appropriate measures to remove the hazard.

However, a work refusal is a serious action for a worker to take — the fundamental tenet of the employment relationship is that the worker performs work and the employer compensates the worker for that work. So, not surprisingly, the bar is high to justify a worker refusal under health and safety legislation. It must meet an objectionable and reasonable standard of a hazard or danger to the worker and the worker must be exposed to it at the time of the work refusal.

A recent case involving an Ottawa bus driver demonstrates that a subjective perspective of a workplace danger leading to a work refusal may not necessarily hold up to objective scrutiny. In Hassan v. City of Ottawa (OC Transpo), a bus driver was involved in an incident with a supervisor in which the supervisor’s hand came into contact with his chest as he tried to walk past him. The driver said he was upset by the incident and, after seeing his doctor for anxiety, requested temporary modified duties. The employer granted him the request by assigning him to work in a garage.

However, on the worker’s first day at the temporary assignment, he ran into the same supervisor — the supervisor often travelled around, and sometimes come to the garage. The worker reported the encounter the next day, saying the supervisor stared him down. He said he didn’t feel safe and initiated a work refusal on the basis he was supposed to be accommodated for his anxiety by keeping separated from the supervisor.

The employer’s health and safety committee and a delegate from Employment and Social Development Canada both investigated and found the worker was not exposed to a workplace danger at the time of his work refusal. The worker appealed to an occupational health and safety tribunal, but the tribunal agreed with the other findings — the encounter wasn’t physical, there were no words exchanged, and the alleged threatening behaviour ultimately amounted to a look the supervisor gave the worker. 

A reasonable person wouldn’t see this as a real risk to the worker’s safety, said the tribunal, adding that the worker waited until the next day to initiate his work refusal, so he must not have felt in danger at the time and couldn’t have been in danger before he even started work the following day. The tribunal also noted that the worker may have believed there was a danger, but it was speculative and didn’t hold up to objective analysis.

Everyone has their own view of a situation, and if a worker isn’t comfortable, it makes sense to discuss it with management. But a discussion and co-operation are different than an outright refusal to work. Work refusals can be useful tools to help protect workers’ health and safety, but should be considered a last resort. Sometimes we may feel like refusing work, but it isn’t usually the best solution to a problem.