Archived - Decision: 04-043 Canada Labour Code Part II Occupational Health and Safety

This case was decided by appeals officer Pierre Rousseau.

[1] This case concerns an appeal pursuant to subsection 129(7) of the Canada Labour Code, Part II, by Douglas Stewart Sanford on behalf of Robert Binkley, Correctional Supervisor employed by Correctional Service Canada, Warkworth Institution in Trenton, Ontario, against a written decision of no danger issued by health and safety officer Robert Tomlin on March 1^st, 2002. The said decision has been given to the employee on March 6, 2002.

[2] On February 26, 2002, the employee refused to work for the reason described below in the investigation report by health and safety officer Robert Tomlin:

Statement of the refusal to work:

On January 22 2002, I requested an interview with Warden Peter White on the release from segregation (sic). I informed the Warden that I was in fear for my safety as this inmate had threatened to kill me. The Ontario Provincial Police had officially charged this inmate and the fear for my safety was so great I invoked Part II of the CLC.

[3] On April 25^th 2003, and May 8 2003, the Case Management and Hearing Coordinator, Canada Appeals Office on Occupational Health and Safety, contacted Mr. Sanford to schedule a hearing some time in May 2003. Mr. Sanford returned an e-mail on May 9 2003, informing Ms. Paris that he was withdrawing as representative of Mr. Binkley in the matter.

[4] Following that e-mail, 8 attempts were made to reach Mr. Binkley through his employer and his family and we have never been able to reach him. The last conversation we had was with one of his nephews who informed us that if there was no money involved, Mr. Binkley was not interested to pursue with the appeal.

[5] As I consider that all the efforts possible have been attempted to reach Mr. Binkley to pursue with the appeal.

[6] As the refusal to participate of the appellant placed us in a situation where it will be very hard for us to apply the natural justice principles.

[7] As the appellant did not return to work yet and it appears that his condition will not permit him to return to work in a near future.

[8] As the refusal to work and the appeal were involving only the appellant and no other employee who could have represented him.

[9] For all these reasons, I therefore dismiss Mr. Binkley's appeal. This file is closed.

Decision No.: 04-043

Applicants: Robert Binkley

Employer: Correctional Service Canada

Key Words: Refusal to work, danger, threat by an inmate

Summary:

A health and safety officer investigated a refusal to work from a Correctional Service Canada employee as an inmate had threatened to kill him. The health and safety officer decided there was no danger. The employee appealed the decision mentioning that all staff who might seek to direct or oppose the actions of the inmate were very much in danger and that matters exceeded that which can be defined as "normal conditions of employment". After many attempts to pursue with the appeal and the refusal of the appellant to participate, the appeals officer concluded that he did not have all the elements to respect the principals of natural justice and therefore dismissed it.