Ontario Public Service Employees’ Union v. Ministry of Transportation and Ministry of Labour
0967-00-HS Ontario Public Service Employees’ Union, Applicant v. Ministry of Transportation and Ministry of Labour, Responding Parties.
BEFORE: Gail Misra, Vice-Chair.
DECISION OF THE BOARD; July 19, 2000
1This is an application under section 61(7) of the Occupational Health and Safety Act (the “Act”) for the suspension of the operation of the order issued by Inspector Michael Hutt pending the disposition of the applicant’s appeal of that order. The impugned order arose out of Field Visit No. 911870, and issued on June 5, 2000.
2It appears that on May 26, 2000 Mr. Paul Dunseith, a member of the applicant union, made a work refusal pursuant to the Act and cited a number of hazards that he believed posed a risk to his health and safety. Mr. Dunseith works as a Transportation Enforcement Officer with the Ministry of Transportation (the “employer” or “MOT”) in the Kitchener District Office.
3Several of Mr. Dunseith’s concerns centered on his view that he was in danger of being assaulted by vehicle operators whose vehicles he stops for inspection. His particular concerns were that he had missed training the employer had provided regarding the use of two-way radios; there were “dead zones” where enforcement officers were unable to reach the OPP Communication Centres on their radios; there was inadequate training to deal with violent operators; the employer’s refusal to supply enforcement officers with pepper spray or to train them in the use of the spray; and, the lack of protective cages in the vehicles when arrested individuals have to be placed in the back seat of the enforcement officer’s car pending the arrival of the police.
4There is no dispute that the work refusal was investigated, the Inspector resolved some of the issues raised, and made orders regarding other matters. The Inspector stated in his report that his Reasons 3 to 6 dealt with the hazard of physical assault. He went on to state that section 43(3) of the Act did not apply as “the refusing worker was not refusing to use or operate any equipment, machine, device or thing that” was likely to endanger the worker or another worker, nor was there a physical condition of the workplace likely to endanger him. He therefore noted that the Ministry of Labour would treat the issues raised as a complaint.
5It appears that the applicant takes issue with this aspect of the Inspector’s report as it claims in its appeal that the Inspector failed to properly apply subsection 43(3)(c) of the Act. The applicant states in its suspension request that:
The Inspector’s Decision placed an unnecessary and erroneous limit on the right to refuse unsafe work enjoyed by the employer’s enforcement officers by finding they did not have the right to refuse where the hazard involved physical assault.
The employer’s enforcement officers are subject to the risk of physical assault from commercial vehicle operators as part of their enforcement activities on behalf of the employer.
By finding that workers who have reason to believe the employer has failed to take adequate precautions to protect them from this risk of physical assault do not enjoy the statutory protection against reprisals provided by s. 43 and s. 50 of the Occupational Health and Safety Act, the Inspector’s Decision will have a chilling affect on the exercise of the right to refuse for enforcement officers’ own protection.
Accordingly, suspension of the decision of the Inspector that the enforcement officers do not have a right to refuse under s. 43(3) of the Occupational Health and Safety Act will assure the health and safety of these workers by permitting them to exercise their statutory right to refuse unsafe work without hesitation or fear of reprisal.
6The Ministry of Labour filed a response to this suspension request in which it argues against the suspension of the Inspector’s order. It notes that all that the Inspector did was to find that the complaint did not fall within the criteria for a work refusal under section 43(3) of the Act. The Inspector nonetheless treated all of Mr. Dunseith’s concerns as part of a health and safety complaint, and made a number of decisions, findings and directions to the employer, including six orders that required corrective action by the MOT.
7Furthermore, the Ministry of Labour argues that the Transportation Enforcement Officers continue to enjoy full rights to refuse unsafe work as set out in section 43(3) of the Act. In Mr. Dunseith’s case, there is no evidence that Mr. Dunseith was assaulted or threatened with an assault while carrying out his duties on May 26, 2000, nor at any time in the past. Nothing in the Inspector’s report suggests that Transportation Enforcement Officers do not have full rights to refuse unsafe work. The Ministry of Labour therefore argues that the applicant cannot establish that the health and safety of workers will be assured if the Order is suspended; that a refusal to suspend the order will have a negative impact on the applicant; and, the applicant has not met the burden of showing that its application is more likely than not to succeed on the merits of the appeal.
8The MOT also opposes the suspension request. It points out that the health and safety of workers will be assured whether or not the Order is kept intact because most of the safety concerns raised by Mr. Dunseith have already been dealt with, and the remainder will be resolved soon. Further, it points out that the Inspector’s decision did not place any unnecessary limit on the right to refuse work. The MOT states that the applicant has presented no evidence that the Enforcement Officers’ anxiety or concerns over exercising their right to refuse unsafe work will increase if the order is not suspended.
9The Board’s approach to determining whether to grant an application to suspend an inspector’s order was discussed in R.J. Dungey and Sons Ltd., [1999] OLRB Rep. Jan/Feb. 82 at page 87 as follows:
… although the inspector’s order is under appeal there is, in my opinion, a rebuttable presumption that an inspector’s order is authorized by the OHSA and is correct. An inspector has the statutory duty to administer and enforce the OHSA. An inspector’s decision and order are part of that statutory administration and enforcement framework and as such should not be suspended prior to the hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so.
10Having reviewed the submissions of all of the parties the Board is of the view that the applicant has not demonstrated any compelling grounds that would cause the Board to suspend the Inspector’s decision and orders. On a reading of the Inspector’s report there is nothing to suggest that workers cannot refuse unsafe work in accordance with section 43(3) of the Act. Therefore, there is no real concern about whether or not suspension of the Inspector’s order would endanger a worker. In any event, the MOT has apparently largely complied with orders the Inspector issued as a result of Mr. Dunseith’s complaint, or is in the process of doing so, making it counterproductive to suspend the order. Further, since the Board is of the view, shared by the Ministry of Labour, that the order does not appear to limit the workers’ right to refuse work pursuant to section 43(3), the applicant will not suffer any negative effect as a result of the refusal to suspend the order. Given the nature of the appeal, it is not clear to the Board that the applicant is more likely than not going to succeed on the appeal. The Board is not satisfied that there are any good reasons to vary the Inspector’s order and therefore declines to do so in this suspension request.
11The application for suspension of Inspector Hutt’s order is hereby dismissed.
“Gail Misra”
for the Board