The protection of the safety of workers is an essential obligation on all Ontario employers.
Under subsection 43(3) of Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1, employees have the right to refuse work they believe is likely to endanger themselves or another worker.
In Ontario English Catholic Teachers’ Association v. Dufferin-Peel Catholic District School Board, the Ontario Labour Relations Board (OLRB) recently re-clarified the test a worker must meet under subsection 43(3) to affect a work refusal in the context of workplace violence.
Additionally, the decision also clarified the application of subsection 43(3) with respect to teachers, as Regulation 857, R.R.O. 1990, Reg. 857 creates exemptions to teacher work refusals where the circumstances are that the “life, health, or safety of a student is in imminent jeopardy.”
Background
In March 2018, a student who had autism spectrum disorder was involved in a violent incident in the classroom.
The student attacked an education support worker, causing her serious injuries. Three teachers who witnessed the violent incident and chaotic scene subsequently engaged in a work refusal under subsection 43(3) of the OHSA on the grounds that they did not feel safe being near or around the student.
An Inspector from the Ministry of Labour, Immigration, Training & Skills Development (MLITSD) found that the three teachers had no basis for the work refusal.
The Ontario English Catholic Teachers’ Association appealed the decision of the inspector under section 61 of the OHSA, resulting in the work refusal being granted to two of the three refusing teachers.
The main issue the OLRB needed to consider was whether the work refusal of the three teachers met the conditions of subsection 43(3) of the OHSA.
Case analysis
The MLITSD Director focused heavily on the fact that, at first instance, the teachers could not articulate their reasons as to why the work was unsafe. Moreover, the MLITSD director argued that on the day of the work refusal, the violent student was not at school and therefore the teachers could not have anticipated any form of workplace violence.
The OLRB rejected the MLITSD director’s position that a workers’ “reason to believe” that there is unsafe work must be based on some form of articulable facts in the moment of refusal, akin almost to the meaning of “reasonable grounds to believe” in a law enforcement context.
The board instead clarified that it would be incorrect to turn the right to refuse work — which currently operates on the standard of “reason to believe” — into the same standard as one used by police or customs officials when detaining and searching people. It further decided that the extent or reasonableness of a workers’ subjective and objective fear or concern is not undermined by the fact that in the moment of a work refusal they are otherwise inarticulate.
Additionally, the board cautioned that at the “reason to believe” stage of the analysis, what a worker says or does is still relevant to the outcome of the case, but just as relevant are all the circumstances of the refusal, including the state of mind of the worker, honest perception, and objective factors that were not articulated.
The next portion of the test the board clarified was that of the “likely endangerment” of a worker with respect to workplace violence. It said that a worker could prove they are “likely endangered” by workplace violence if they can show that the likelihood of injury is a “real or significant possibility.”
The board rejected the interpretation of the MLITSD director who argued that the worker must prove that the likelihood of an injury is “more probable than not.” The board decided that the “more probable than not standard” is too great of an onus for workers to meet and is contrary to the OHSA’s goals as a public welfare legislation.
The board did caution that a worker cannot refuse work if the likelihood of endangerment is so small in the circumstances as to be unreasonable. However, simply because the likelihood of injury is less than the likelihood of no injury, it does not mean that by law, performing the work is the risk that the worker must take.
The board took the position that Regulation 857 “clearly and unequivocally” provides that the right to refuse work applies to teachers in the limited circumstances it sets out.
Additionally, the board decided that the requirement that teachers attend the classroom prior to initiating a work refusal is unnecessary. While the facts from case to case will vary, the greater the notice to the school’s administration of the work refusal, assuming there is adequate classroom coverage, there will be less of a likelihood that the teacher will be required to personally ensure the welfare of students prior to the work refusal.
Conclusion
This recent decision is important for employers and mangers in all sectors, regarding a worker’s right to work unsafe work arising from potential workplace violence.
Employers must ensure they have conducted a workplace violence risk assessment, and provide training of all employers every year, as the risk evolves. Further, the decision suggests that employers must make meaningful changes to the work environment after an incident of workplace violence occurs to ensure the safety of all workers.
For any questions on this decision, other occupational health and safety issues, and the law surrounding workplace refusals generally, please contact Norm Keith, of KPMG Law LLP’s Employment & Labour Law team, at [email protected] or 416-540-3435.
