CANADA: Harassed Employee’s Work Refusal Illegal: Court
An employee did not have a right under occupational health and safety legislation to refuse work due to harassment, a Nunavut judge has held. The employee, a wildlife biologist with the Government of Nunavut, refused to work due to harassment. She filed a work refusal complaint with a government safety officer. Under the Safety Act, an employee could refuse to work due to an “unusual danger” in the workplace. The safety officer decided that the employee had been subject to harassment and that the harassment constituted an “unusual danger” so that the work refusal was justified. The court disagreed, and overturned the safety officer’s decision. The court noted that unlike other provinces’ workplace safety laws, Nunavut’s Safety Act is silent on the issues of work- place violence and harassment. In Nunavut, a safety officer could not issue an order to stop harassment, and the legislation did not otherwise protect employees from harassment. The court noted that in Ontario, the Occupational Health and Safety Act permits employees to refuse to work due to workplace violence but not workplace harassment – a policy choice that the Ontario govern- ment made. This case illustrates that whether harassment is a “safety” issue under workplace safety laws, depends on the wording of the statute in question. It is not true, as a general proposition, that harassment is a safety issue.
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“Simmering Ball of Negativity” Dismissed After Threatening Statements
An arbitrator has upheld the dismissal of a city “traffic operations” employee for threatening statements, a racist comment and one incident of dangerous and aggressive driving. The arbitrator concluded: “The grievor, in my view, is not just ‘eccentric’, as Union counsel did his utmost to portray him; he is, at least in the context of his most recent workplace setting, a simmering ball of negativ- ity who is routinely disparaging of his co-workers, a maker of threatening or menacing sounding statements, a person given to insulting the public that the City serves, and capable of erratic, even dangerous, behaviour behind the wheel of a very large City vehicle. In my view, each and every one of these events, which unfolded over a relatively brief ten-day period, was worthy of discipline and all of them, in the light of the grievor’s record, support the decision to discharge.” Further, the employee lacked self-awareness and was not apologetic, and did not appreciate the seriousness of his misconduct. This case is another example of how arbitrators are decreasingly tolerant of threatening or violent conduct in the workplace.
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