2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Employee’s Right to Refuse Unsafe Work Affirmed by SCC
On May 1, 2014, the Supreme Court of Canada affirmed, in Dionne v. Commission scolair des Patriotes, 2014 SCC 33, an employee’s right to refuse unsafe work under occupational health and safety legislation.
The employee was a pregnant substitute teacher in Quebec. The Quebec Act Respecting Occupational Health and Safety (the “Act”) includes specific health and safety protections for pregnant women whereby they can refuse to perform work that presents a health and safety danger to themselves or their fetus, and to have a reassignment of work to avoid the risk. If reassignment is not possible, they have the right to take Preventative Withdrawal which allows them to stop working and receive income replacement benefits during pregnancy.
The employee was advised by her doctor that she was vulnerable to contagious viruses. The contagious viruses can be spread by groups of children, thus, the classroom posed a risk. She accepted a one-day teaching position but due to the health risk made an application for Preventative Withdrawal. The Commission des lesions professionnelles held that the employee’s inability to go into the classroom made her ineligible for Preventative Withdrawal. This decision was judicially reviewed.
An employee who refuses to do unsafe work during her pregnancy is deemed by the Act to be “at work” while on reassignment or Preventative Withdrawal. The Act therefore provides two forms of protection to pregnant employees:
- It protects their health by substituting safe tasks for dangerous ones; and
- It protects their employment by providing financial and job security.
In the situation at hand, when the employee accepted the one-day teaching position, a contract was formed between the employee and the School Board. The employee was therefore considered a “worker” under the Act and was eligible for reassignment or Preventative Withdrawal. The employee’s pregnancy was not an incapacity that prevented her from performing work, it was the dangerous workplace (the classroom) which prevented her from working. To conclude otherwise would negate the objectives of the Act and penalize pregnant women for doing precisely what the legislative scheme mandates: avoiding workplace health risks during pregnancy.
WHAT THIS MEANS FOR EMPLOYERS:
The New Brunswick Occupational Health and Safety Act does not include specific health and safety protections for pregnant women like those at issue in this decision. However, the New Brunswick Occupational Health and Safety Act does include a general right of employees to refuse unsafe work.
The Supreme Court of Canada’s decision included the following comments with respect to the general right of employees to refuse unsafe work:
- The right to refuse unsafe work is an implied term of every employment contract;
- An employee’s refusal to perform unsafe work is an exercise of a legal right. It is not a refusal to fulfill the employment contract. Employees do not have to choose between job security and their health or safety;
- A reassignment or temporary withdrawal from work based on an employee’s right to refuse unsafe work is a deemed substitute for work that he or she would have performed but for the health or safety risk. It is not to be construed as an absence from work.