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Discipline Warranted for Work Refusal Complaint Not Made in Good Faith

As part of the Bill 168 amendments to the Occupational Health and Safety Act (“OHSA”), workers can initiate a work refusal where there is a threat of violence in the workplace. In a recent labour arbitration decision, the arbitrator found that where a work refusal complaint to the Ministry of Labour is not made in good faith, disciplinary measures may be taken, including suspension from employment.

In Canadian Union of Public Employees, Local 1487 v. Scarborough Hospital, a grievance was filed on behalf of an employee (the “Complainant”) whose employment was terminated for just case. The Complainant worked as a plumber at the Scarborough Hospital. He alleged that he was threatened by a co-worker.  The Complainant alleged that his co-worker suggested that he better watch himself or someone would “cut his tendons”. The other employee testified that he never uttered a threat and his comments related to a recent story in the Toronto Star regarding an assault perpetrated by the Hell’s Angels.

The Complainant testified that he did not initially feel threatened by the conversation but that the more he thought about it the more he perceived it as a threat. The arbitrator found that this leads more easily to a conclusion that a confusing conversation occurred which the complainant let fester into “an imagined threat in his mind”.

Shortly after the alleged threatening conversation, the Complainant was scheduled to work alone for a few hours on the Service Department level of the hospital. He testified that he did not feel safe and initiated a work refusal to his supervisor. The employer argued at the hearing that the employee never initiated a work refusal.  The employee did not complain to the Ministry of Labour at this time.

The Complainant went on a leave of absence. After being on leave for a period of time he demanded to be returned to work. When the employer did not return him to work immediately he filed a work refusal complaint with the Ministry of Labour. This occurred over two months after the incident.

The arbitrator concluded that no work refusal had been initiated and that the complaint to the Ministry of Labour was not made in good faith. He found not only that the claim was unfounded but that it was reckless.

The arbitrator held that discipline was warranted for making the improper work refusal allegations. However, he found that the appropriate disciplinary response was a suspension and not termination of employment.  In determining the level of discipline, the arbitrator took into account the Complainant’s five years of service as well as his clean disciplinary record.

Employers must take allegations of violence and harassment in the workplace seriously. As provided in the obligations codified in the OHSA, employers must create and implement policies which include measures and procedures: to control the risk of workplace violence, for summonsing assistance when violence occurs or is likely to occur, for reporting incidents of violence, and for how the employer will deal with and investigate complaints.  However, as this case suggests, when a complainant acts in bad faith, the employer may respond with discipline. Disciplinary action should be taken with caution and should only be implemented in situations where the complainant is clearly not acting in good faith.

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