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Canadian Safety Reporter
Sep 4, 2018

Stress of old complaint not a danger related to current job

Public servant exercised work refusal after he was denied paid leave to work on his complaint against previous employer
By Jeffrey R. Smith
    
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A federal public servant’s complaint against his former employer in another government department may have caused him stress but didn’t cause a danger to him in his current position that warranted a work refusal, the Canada Occupational Health and Safety Tribunal has ruled.

Pierre Morin was a senior program advisor at Employment and Social Development Canada (ESDC) for the federal government department’s Passport Strategic Modernization Office. In 2017, Morin filed a complaint with the auditor general about wrongdoings against the Public Sector Integrity Commissioner regarding various incidents he had experienced while working as a senior access-to-information and privacy advisor for Natural Resources Canada from 2010 to 2012. His complaint included allegations of workplace violence, undeserved punishment, malicious and untrue rumours and gossip, deliberate attempts to undermine his work, social exclusion, unreasonable and unfair workload, unfair criticism, invasion of privacy, threats, and intimidation. He also claimed he faced reprisals for his complaint that were covered up.

Morin received funding under the Public Servants Disclosure Protection Act to pursue his claim and asked for a paid leave from his job at ESDC so he could take the time to work on his complaint. However, his leave request was denied by ESDC.

After his leave request was denied, Morin wrote an email to ESDC management about the effects of his ongoing complaint and his intention to exercise a refusal to perform work when it presented a safety risk to him, dated May 24.

“I understand that it’s my legal right as a public servant of Canada to refuse unsafe work that causes me recurring psychological injuries caused by the Government of Canada refusal to address past workplace wrongdoing and violence within the Public Service of Canada,” Morin wrote in the email. “It is unreasonable and unhealthy for a whistleblower to be subjected to so many serious breaches of conduct and continued Government of Canada red tape by its senior officials who possess the authority to resolve all matters but refuse to do so.”

Morin also noted that his doctors had confirmed the negative effects of the delays and lack of resolution to his workplace violence complaint on his “mental/physical/financial health,” and continuing to work in his job while addressing his complaint was “a safety risk to my mental and physical health.” Morin claimed that trying to “work full-time after hours and on weekends to re-submit my allegations of criminal activity and PSDPA violations against PSIZC and numerous other (government) officials and members of Parliament” presented a danger to him if he continued to perform his duties with ESDC.

Health and safety committee found no danger at work

ESDC investigated the matter and determined that no danger existed to Morin if he continued to perform his job duties. The acting manager of Morin’s office told him he must either report to work or submit a leave request to justify his absence from work.

By May 31, Morin still refused to come into work, so the acting manager informed him to report the work refusal to the local health and safety committee. She also offered to assign him alternate duties pending the resolution of his refusal.

Morin reported his refusal to the local health and safety committee, which also found there was no danger to Morin in his workplace. Despite this, Morin informed ESDC on June 8 that he was continuing his work refusal.

A ministerial delegate from the federal labour program met with Morin, who said the reason for his work refusal was the stress caused by different time limits and formalities he had to follow in processing his complaint to the auditor general. He also reiterated that he couldn’t devote all his time on evenings and weekends to the matter while still working full-time. Following her investigation, the ministerial delegate found that the circumstances of Morin’s work refusal weren’t related to his job as a senior program advisor in the Passport Strategic Modernization Office, nor was the preparation of his complaint to the auditor general a task ESDC required him to do. As a result, the delegate reached the same conclusion as ESDC and the health and safety committee — there was no danger to Morin at his job.

Morin appealed to the tribunal.

The tribunal pointed out that the Canada Labour Code allowed employees to exercise their right to refuse to perform dangerous work if “a condition exists in the place that constitutes a danger to the employee,” with “danger” defined as “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”

Based on the code, the tribunal found that a danger justifying a work refusal must relate to the employee’s workplace or occur in the course of his employment.

The tribunal noted that Morin exercised his work refusal after he had requested a paid leave from ESDC to work on his complaint to the auditor general but was denied. It was ESDC’s prerogative as an employer to deny the request since it was for activities unrelated to Morin’s work with ESDC that he chose to pursue outside of working hours. As a result this didn’t create a condition in the workplace that could be considered a threat to Morin’s life or health, said the tribunal.

The tribunal pointed to an earlier tribunal decision that stated: “To include voluntary activities outside the workplace as relevant to what may be a danger in the workplace would lead to somewhat absurd results,” comparing Morin’s complaint to the auditor general to recreational sports outside of work which could be dangerous to play but have no ties to someone’s job.

The tribunal acknowledged that Morin’s complaint to the auditor general was more serious than recreational sports, but it had no more relation to the work he performed for ESDC — particularly since it was made against his former employers in a different federal government department. The complaint and its related stress had nothing to do with his ESDC position or workplace, and therefore there was no safety risk to Morin from his ESDC job.

“While I do not doubt (Morin’s) assertion that the significant time and effort needed to prepare his complaint to the auditor general are causing him a lot of stress, I have no difficulty in finding that this situation cannot benefit from the protection provided under s. 128 of the code against danger to an employee while at work.”

Morin’s complaint was dismissed.

For more information see:

Morin v. Employment and Social Development Canada, 2018 CarswellNat 3284 (Can. Occ. Health & Safety Trib.).
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