LEEL 570 Lecture Notes - Lecture 2: Large Synoptic Survey Telescope, Occupational Safety And Health, The Employer
27 Jun 2018
School
Department
Course
Professor
Employment
March 12 and 14: IV Characteristics of the Employment Relationship: Er (employer) and Ee (employee)
Obligations
March 12: Occupational Safety and Health
Withdrawal from Work due to Unsafe Workplace
OSH Legislation: generally provides workers with a statutory right to reasonably refuse unsafe
work, without fear of reprisal (their benefits remain intact, including receiving pay)
Stacey Ball on the Right of Preventative Withdrawal
Employee can't just walk off the job – there is a process
Ball frames the general parameters across legislation in CAN as follows (chpt 29-1):
oThe complainant is to report the concern to the employer;
oThe employer must investigate the refusal;
oWhere the complainant believes after the employer's investigation and/or attempt to
rectify the situation that the danger persists and the complainant continues to refuse to work,
the employer and/or employee must contact a safety officer;
oThe refused work may be reassigned to another worker, provided that worker is advised
of the refusal and the complainant's reasons for the refusal;
oThe refusing worker in certain jurisdictions may either be assigned alternate work or be
requested to remain in a safe place nearby;
oThe safety officer will investigate the unsafe situation and report findings to employer
and complainant;
oIf the officer's finding confirms the complainant's belief that a danger exists, then the
officer will issue an order that the matter be corrected. The complainant may continue to refuse
to work until such time that the matter has been corrected
oIf the officer's finding confirms the employer's position that a danger does not exist,
then the complainant may seek an appeal of the officer's decision within a prescribed limitation
period set out in the applicable occupational health and safety legislation
oEven if there is no danger revealed, the worker is still paid during the investigation
period
Quebec LSST:
Article 12: "a worker has a right to refuse to perform particular work if he has REAOSNABLE
GRONUDS to believe that the performance of that work would expose him to danger to his health,
safety or physical wellbeing, or would expose another person to a similar danger"
Article 13: "no worker may, however, excerice his right under section 12 if his refusal to perform
the work puts the life, health, safety or physical wellbeing of another person in immediate danger or
if the conditions under which the work is to be performed are ordinary conditions in his kind of
work"
Jurisprudence text: "… le bon père de famille devenu travailleur,
un travailleur honnête, sincère et loyal, aussi objectif que possible tout en étant partial
(puisqu'il doit juger la situaiton tout en y participant), et moyennement informé.
Ce travailleur raisonnable, c'est le travailleur moyen qui peut honnêtement se tromper quant à
la valeur réelle des motids qu'il a de croire à l'existence d'un danger pour sa sécurité s'il exécute le
travail demandéÉ Syndicat canadien de la fonction publique, section locale 1500 c. Hydro-Qc
(1993)
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find more resources at oneclass.com
Article 14: "untal an executory decision is rendered ordering a worker to resume work, the
employer shall not, subject to s.17 and the second para of s.19, have the work performed by
another worker or by a person who ordinarily works outside the establishment and a worker who is
exercising his right of refusal is deemed to be at work" (17-18: inspector's intervention)
Note: the term "health" in this definition includes "mental health" for which a right to refuse
may be exercised: Forget Chagnon et Marché Bel-Air inc (2000) CLP
Protection against reprisals (section 30)
30: "no employer may dismiss, suspend or transfer a worker, practise discrimination or take
reprisals against him or impose any other penalty on him on the ground that the worker exercised
the right contemplated in s.12"
However, the employer may, within 10 days following a final decision, dismiss, suspend or
transfer the worker or impose another penalty on him if the worker abused his right
Similar protections are available for worker representatives, under s.31
Retention of Benefits and Employment:
38: the worker re-assigned to other duties retain all the benefits attached to his employment
before his re-assignment
At the end of the period of re-assignment, the employer must return the worker to his regular
employment
The worker continues to receive the social benefits recognied for his workplace, subject to
payment of the exigible assessments, part of which is assumed by the employer
39: a worker who has stopped working retains all the benefits relating to his employment before
his work stoppage, subject to the first and second paras of s.36
The 2 and 3rd paras of s.38 apply, with the nec modifications, to a worker who
has sotpped working
A worker retains the benefits contemplated in this section for only one year following the date
of the work stoppage, unless his working conditions do not conform to the standards established for
the contaminant concerned
Bell v. Quebec (CSST) (1988) SCC
A refusal to perform unsafe work is NOT seen as a refusal to fulfill the employment K
It is the exercise of a legislated protection – a deemed contractual working condition
Reasoning focuses on the purpose of the LSST, which is a public order statute - (section 4 LSST)
oEmployers and worker may NOT derogate from these basic rights
oHence: deeming legislation – Dionne para 25: the LSST "DEEMS the K of employment to
include working conditions that do not impair workers' health, safety or physical well-being"...
Dionne v. Commission scolaire des Patriotes (2014) SCC
Abella J. begins the unanimous decision of the Court as follows:
"Quebec's occupational health and safety legislation, together with legislation dealing with industrial
accidents and illnesses, creates a scheme designed to provide financial security when workers ***
Facts: Dionne is a substitute teacher and was called on Nov 13 and accepted. However on Nov
13 she does not come in; her fetus is at risk when the mother is surrounded by children. School said
since she was not a regular teacher with a full time employment K, she should not be paid.
What was the issue?
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Why would a School Board take this matter all the way to the SCC against a supply teacher?
(para 14 implications)
oThey have 500 supply teachers, and many might get pregnant at some point in their
careers, and that would have an impact on the mass salarial.
Process
CSST receives the certificate from Dionne on Oct 3, 2006 and issues a decision – eligibility from
Nov 13, 2006
School Board appeals to the CLP – CSST decision is set aside
oDionne is not even eligible for preventive withdrawal re: not a worker
oWhy not?
Supreme Court and majority of QCA agreed Dalfond J. in dissent, argues for a liberal
interpretation of the term "worker" on purposive grounds
The LSST protections for pregnant women
Is there a right to refuse to perform work under the LSST under Ms. Dionne's circumstances?
oe.g. pregnant worker who supplied a certificate "attesting that her working conditions
MAY be physically dangerous to her unborn child or to herself?" (s.40 of the LSST)
oEntire section of the LSST devoted to re-assignment of a pregnant worker, including s.
46 LSST for breastfeeding
oSection 41 LSST:
If a requested re-assignment is not made immediately, the pregnant worker
may stop working until she is re-assigned or until the date of delivery
oWhat is the significance of the required certificate of reassignment? (paras 4-5) - LSST &
LATMP
os.43 LSST: retention of all benefits
Abella J.
Characterizes the health and safety protections for pregnant women as:
o"an effort to prevent the discriminatory exclusion of women from the workplace based
on pregnancy" (para 28)
How does she arrive at this characterization?
Focuses on the risk that Dionne's particular job poses, the risk is not the
fact that she is pregnant. It's not the worker who is unsuitable to the work, but the
workplace which is unsuitable to the worker, ergo, the worker has the right to remove
herself. The framework needs to be interpreted to prevent the discrimination against
pregnant women; since workers are entitled to a safe workplace
What is the significance of "deeming" to this effort?
Is this an empty right? (paras 27, 30)
It would be if this right to refuse was all the worker got
The framework itself is not empty; pregnant workers have the right to
be reinstated afterwards. It is not an empty right b/c it protects health and employment
(financial and job security)
How does this relate to Ms. Dionne, as a supply worker?
Turns the logic of what is a worker on its head
LSST S.1 Definition of "worker" and "workplace"
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
March 12 and 14: iv characteristics of the employment relationship: er (employer) and ee (employee) Osh legislation: generally provides workers with a statutory right to reasonably refuse unsafe work, without fear of reprisal (their benefits remain intact, including receiving pay) Stacey ball on the right of preventative withdrawal. Employee can"t just walk off the job there is a process. Ball frames the general parameters across legislation in can as follows (chpt 29-1): o o. The refused work may be reassigned to another worker, provided that worker is advised. The refusing worker in certain jurisdictions may either be assigned alternate work or be. The complainant is to report the concern to the employer; The safety officer will investigate the unsafe situation and report findings to employer. If the officer"s finding confirms the complainant"s belief that a danger exists, then the. If the officer"s finding confirms the employer"s position that a danger does not exist,
