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Right to Refuse Unsafe Work Issue - Final Resolve
03-05-2009
10 :57 ESTBrothers and Sisters,
Last year, there was an incident on a TP&E (Track, Programs & Equipment) crew that caused quite a bit of concern. Some of our members were asked to work under 'lookout protection' until a train cleared the limits (approximately 20 -30 minutes). The WH&S (Workplace Health and Safety) rep for the crew indicated to the supervisor that he did not feel that this was safe. Remember there have been a number of close calls with 'lookout protection' over the last couple of years and many of our membership are extremely nervous when ordered to work under these conditions.
The WH&S rep invoked his "Right to Refuse Unsafe Work", which is defined in Part II of the Canada Labour Codes, and was subsequently pulled from service by the supervisor and sent back to the motel. When the WH&S rep got in touch with the TCRCMWED H&S Officer and his Director, an HRSDC (Human Resources and Skills Development Canada) Safety Officer was immediately contacted, as well as the supervisor and his Manager.
Long story short, it was determined that the proper procedure for a "right to refuse" was not followed and instead of a Directive being issued the company offered a "voluntary compliance" which included education of Part II of the code and assurances that it would be followed in the future. The WH&S rep was put back to work and paid for lost time.
However, there was still the larger of issue of an allegation of retaliation by the supervisor for pulling the employee from service. Even though he was now being paid for that time, the overall optics were that if you invoked a reasonable "right to refuse" you would be punished by being pulled from service. This matter had to be addressed and so a formal complaint was lodged with the CIRB (Canada Industrial Relations Board) under section 133 pursuant to section 147 of Part II of the CLC which reads in part,
"147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee
Last year, there was an incident on a TP&E (Track, Programs & Equipment) crew that caused quite a bit of concern. Some of our members were asked to work under 'lookout protection' until a train cleared the limits (approximately 20 -30 minutes). The WH&S (Workplace Health and Safety) rep for the crew indicated to the supervisor that he did not feel that this was safe. Remember there have been a number of close calls with 'lookout protection' over the last couple of years and many of our membership are extremely nervous when ordered to work under these conditions.
The WH&S rep invoked his "Right to Refuse Unsafe Work", which is defined in Part II of the Canada Labour Codes, and was subsequently pulled from service by the supervisor and sent back to the motel. When the WH&S rep got in touch with the TCRCMWED H&S Officer and his Director, an HRSDC (Human Resources and Skills Development Canada) Safety Officer was immediately contacted, as well as the supervisor and his Manager.
Long story short, it was determined that the proper procedure for a "right to refuse" was not followed and instead of a Directive being issued the company offered a "voluntary compliance" which included education of Part II of the code and assurances that it would be followed in the future. The WH&S rep was put back to work and paid for lost time.
However, there was still the larger of issue of an allegation of retaliation by the supervisor for pulling the employee from service. Even though he was now being paid for that time, the overall optics were that if you invoked a reasonable "right to refuse" you would be punished by being pulled from service. This matter had to be addressed and so a formal complaint was lodged with the CIRB (Canada Industrial Relations Board) under section 133 pursuant to section 147 of Part II of the CLC which reads in part,
"147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee
(c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part."
Yesterday, through Mediated Arbitration at the CIRB offices in Ottawa, we reached a joint resolve which will relieve the company of facing a full hearing before the Board.
We felt that we could reach this resolve by treating this matter as a "one time" incident with the assurance that the company understands its obligations going forward and because the WH&S rep who was pulled from service has been fully compensated. We have also been told that the supervisor involved in this instance is no longer working as a supervisor.
I have attached a letter which was part of the settlement, that will show that the System does work. It should be noted, in all fairness, even though Scott Sutherland signed the letter, he was not General Manager of TP&E at the time of the occurrence. He is the replacement for that General Manager.
You should not be punished or threatened in any way, shape or form for invoking your legal rights under the Code. This is a serious issue and you are protected. Is the System perfect? Not by a long shot, but it is moving forward in a positive fashion. None of us can guarantee that another supervisor on another day in another instance will not act inappropriately. If past practice tells us anything, it tells us that they will. However, as long as we act on each individual 'instant case' and do not allow them to become the standard instead of the exception, we have the best chance of eradicating this behaviour entirely.
Always remember, we are Teamsters...all of us... and we will not allow any threat or intimidation from anyone... to go unchallenged.
Stay safe, Stay strong, Stay United,
Bill Brehl
President, TCRC MWED
Letter >>>
