Archived - Decision 05-011 Canada Labour Code Part II Occupational Health and Safety

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Andrea Caverly Karen Prandovszky applicants and Human Resources Development Canada respondent _____________________ Decision No. 05-011 March 23, 2005

This case was heard by appeals officer Michèle Beauchamp, in Toronto, Ontario, on September 30, 2004.

Appearances

For the applicants
Lorraine Diaper, Canada Employment and Immigration Union (CEIU)
Andrea Caverly, investigation and control officer, Human Resources Development Canada (HRDC) Resource Centre, Toronto East (Ontario)
Karen Prandovszky, investigation and control officer, HRDC Resource Centre, Toronto East (Ontario)

For the employer
Betty Crossey, acting director, HRDC Resource Centre, Toronto East (Ontario)

Health and safety officer
Kathy Conorton, Labour Program, HRDC, Metro-York District, Toronto (Ontario)

[1] This case concerns an appeal made under subsection 129(7) of the Canada Labour Code (the Code), Part II, by Andrea Caverly and Karen Prandovszky, investigation and control officers at the Toronto East HRDC Resource Centre. The appeal was requested against a decision of absence of danger issued by health and safety officer (HSO) Kathy Conorton on April 3, 2003, following her investigation into the employees' refusals to work on April 2, 2003.

[2] I retain the following from health and safety officer Conorton's written investigation report and testimony at the hearing.

[3] As investigation and control officers, Andrea Caverly and Karen Prandovszky were from time to time acting as duty officers in the Toronto East HRDC Resource Centre. At the time of their refusal to work, they were responsible for meeting clients, to give them information, to interview them and to process their documents. Some of those clients were arriving from Asian countries where the Severe Acute Respiratory Syndrome (SARS) was prevalent. Coming directly from Pearson International Airport to the Toronto East HRDC Resource Centre to apply for a social insurance number, they would usually be accompanied by their whole family. The Toronto East office is the closest one from the airport.

[4] On March 31, 2003, as both employees were concerned about meeting clients coming from Asian countries, they informed their supervisor, Betty , that on April 2, 2003, they would refuse to perform their duty officer tasks of meeting clients in the Toronto East office if their employer did not provide them with equipment to protect themselves against SARS. Their employer decided to allow them to wear masks and gloves, but not to provide them with this equipment.

[5] Therefore, as they had said on March 31, Andrea Caverly and Karen Prandovszky refused to work on April 2, 2003. As required by subsection 128(10) of the Code, management representatives investigated their refusal to work with a member of the local health and safety committee. After their investigation, they advised both employees verbally that they could wear masks and gloves, but that they would not be provided to them. Both employees therefore continued to refuse to work and a health and safety officer was notified.

[6] Health and safety officer Conorton investigated their refusals to work on the same day. She noted in her report that Andrea Caverly refused to work for the following reasons:

We have refused to work with the general public because a cross section of that public include people who have returned from travel to or have just arrived from Asian countries. We feel our health could be compromised because a large number of the individuals could be traveling from those areas affected by the SARS virus. They could be sneezing or coughing while we're interviewing them or wipe their noses on their sleeves or blowing their noses with their hands without the use of Kleenex. We have no protective gear and believe we should be provided with protective gear such as gloves and mask by our employer. I have attempted to obtain masks myself and have not been able to find any of the ones recommended by Health Canada. The only one I have lasts 3 hours and I have to save that for tomorrow when I will be working at another office where the likelihood of dealing with people in quarantine could be greater. I have spoken to a man by the name of Jean Pierre at Health Canada and he told me that the information from Health Canada indicating that federal government employees are not considered to be at high risk of infection because of the limited contact with and proximity to the individuals and that the use of masks is not necessary is a broad based statement and does not necessarily apply to all federal employees.

[7] For her part, Karen Prandovszky's refusal to work statement is as follows, as noted in health and safety officer Conorton's report:

Andrea has given a pretty thorough description of the situation and my reasons for refusing are the same as hers.

[8] HSO Conorton declared that at the time of the refusals to work, the World Health Organization and Health Canada had been monitoring the SARS outbreak closely. She was told by Andrea Caverly that officials from Health Canada had informed her that government employees were at low risk of getting SARS because they did not have close contact with the general public.

[9] HSO Conorton contacted a senior advisor at Health Canada, who confirmed that statement. She was also informed that Health Canada had issued an information bulletin on March 30, 2003, which stated that

[t]he Government of Canada workers are not considered to be at high risk of infection because of the limited contact with and proximity to the individuals. Therefore, Health Canada advises that the use of masks is not necessary.

[10] HSO Conorton found that Health Canada had provided regular updates about SARS on its website. As well, it had been distributing Health Alert cards at airports, to instruct travelers to seek medical assistance if they had symptoms of SARS.

[11] In addition, Health Canada was holding teleconferences on a daily basis to inform key government departments, including HRDC, of the latest developments and possible modifications to the national approach taken to handle the SARS issue.

[12] HSO Conorton decided that there was no danger for Andrea Caverly and Karen Prandovszky to work with the public as duty officers, based on Health Canada's advice that wearing personal protective equipment was not necessary to protect government employees who had limited contact with the public.

[13] HSO Conorton believed that there was also no reasonable expectation that meeting clients at the HRDC Resource Centre would cause either Andrea Caverly and Karen Prandovszky illness or injury because the risk of those clients being infected by SARS were negligible.

[14] HSO Conorton declared that her decision was based on the most current information available on SARS at the time of her investigation and that she had also obtained information and advice from her Regional Occupational Health and Safety Technical Advisor at the HRDC Regional Labour Office in support of her decision.

[15] Both Ms. Caverly and Ms. Prandovszky gave testimonies at the hearing. I retain the following from their statements and from the documents that they submitted to me.

[16] Ms. Prandovszky stated that she understood that HSO Conorton's decision of no danger was based on the Canada Labour Code, Part II. However, she believed that the Code was not flexible enough to deal with that type of issue, neither did it give enough discretion to the health and safety officer to make a proper decision when investigating a refusal to work dealing with a situation like the one in which they were involved.

[17] Ms. Prandovszky testified that neither she nor Ms. Caverly was told that they could wear masks and gloves. She declared that if the employer had informed them that they could wear them on the day of their refusal to work, the situation would not have "escalated" up to a hearing process because the issue would have been automatically resolved.

[18] Furthermore, Ms. Prandovszky believed that the process put in place to deal with SARS was not clearly explained by management, who did not inform them either that the clients they met as duty officers were not at risk of being infected by SARS.

[19] Ms. Caverly and Ms. Prandovszky submitted some documents at the hearing to support their position, including reports on the SARS crisis situation gathered on the Internet. More particularly, the employees put forward their arguments against HSO Conorton's decision of no danger in a document that they entitled Labour Appeal. I retain the following main points from that document:

• … SARS constitutes "biohazardous material" and as such requires the employer to implement an exposure control plan where a worker has or may have occupational exposure to a blood borne pathogen or other biohazardous material[;]
• [t]he definition of "occupational exposure" ought to apply to all workers who could reasonably be anticipated to be at risk of harmful contact with blood borne pathogens, or other potentially biohazardous material, as a result of performing their regular or assigned job duties[;]
• [f]or the pathogen causing SARS, harmful contact may occur when caring for, living with, or having face-to-face (within one metre) or direct contact with a person who has SARS or with secretions from his or her nose, mouth, throat or other bodily fluids. The virus can spread by touching objects that an infected person may have sneezed on[;]
• … we refused that portion [of our positions] which had been a local office policy to begin with; that being the role of duty officer[;]
• … Ms. Conorton ought to have made a recommendation to the employer that safety precautions be undertaken. She failed to provide employees with a safe work place by not having the employer provide gloves and masks to protect themselves…
• … we maintain that given that HRDC had been given a supply of gloves and masks to distribute they ought to have erred on the side of caution and done so[;]
• [b]oth Ms. Prandovszky and Ms. Caverly took steps to protect themselves after Ms. Conorton's decision was rendered and purchased gloves and masks with considerable cost to themselves[;]
• … we believe that the Labour Canada Legislation requires new legislation to incorporate viruses from unknown pathogens and allow for greater discretion on the part of the Safety Officer to make a better decision for greater safety at the work place.

[20] Ms. Crossey testified at the hearing as the employer's representative. I retain the following points from her testimony. She stated that from the outset, the department monitored the SARS outbreak closely through conference calls with Health Canada.

[21] Ms. Crossey advised HRDC senior management and the local health and safety committee of the refusals to work of Ms. Prandovszky and Ms. Caverly. At that time, management had already started holding information sessions with employees and their union on the SARS issue. Signs had also been posted on entry doors to advise clients to contact a 1-800 number if they had any SARS symptoms.

[22] Ms. Crossey declared that the department had purchased masks and gloves to give to employees on a need-to basis. She confirmed that they had been advised by Health Canada in a bulletin dated March 30, 2003 that because federal employees had limited contact with individuals, the use of masks was not necessary. Therefore, management decided to act on that recommendation by not issuing masks and gloves to employees, even though management already had them on hand.

[23] Ms. Crossey also pointed out that management did not distribute this protective equipment because it did not want to provoke a state of "panic" within employees or to alarm them unnecessarily.

[24] Nonetheless, Ms. Crossey did advise Ms. Prandovszky and Ms. Caverly that they could wear masks and gloves if they wanted, but that the department would not provide them.

[25] The issue in the present case is to determine if Ms. Caverly and Ms. Prandovszky were in danger according to the Canada Labour Code, Part II, when HSO Conorton investigated their refusal to meet clients as duty officers of the Toronto East HRDC Resource Centre on April 2, 2003.

[26] Section 122(1) of the Code gives the following definition of danger:

"danger" means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.

[27] Basically, this definition tells us that an existing or potential hazard or condition or a current or future activity constitutes a danger when

• we can reasonably expect this hazard, condition or activity to cause injury or illness to the person exposed to it;
• the injury or illness may not happen "immediately" when the person is exposed to the uncorrected hazard or condition or unaltered activity;
• however, this injury or illness will definitely happen before the hazard or condition is corrected or the activity is altered;
• there is not a mere possibility but a reasonable possibility that the potential hazard or condition or the future activity will occur some time in the future, even if we do not know precisely when it will;
• the uncorrected hazard or condition, or the unaltered activity is capable of causing injury or illness any time that a person is exposed to it, even though it will not necessarily cause it every time;
• we can ascertain in what circumstances the potential hazard or condition or the future activity could be expected to cause injury or illness.

[28] In the present case, health and safety officer Conorton determined that

• HRDC and the local HRDC Resource Centre management was briefed on a daily basis by Health Canada about the latest situation and developments regarding SARS;
• HRDC and the local HRDC Resource Centre management was keeping employees and the health and safety committee appraised of the situation;
• HRDC and the local HRDC Resource Centre management was following Health Canada's bulletin advising that government employees were at a low risk of being infected by SARS because of their limited contact with the public;
• HRDC and the local HRDC Resource Centre management was acting on Health Canada's advice that the use of protective equipments such as masks was not necessary when federal employees had limited contact with the public;
• the local HRDC Resource Centre management and their employees were aware that clients arriving from the airport at the HRDC Resource Centre had previously been submitted to controls regarding SARS in place at the airport border;
• the risk for employees of meeting SARS-infected clients at the HRDC Resource Centre was minimal because passengers arriving from Asian countries were carefully monitored at the airport to verify if any had flu-like symptoms.

[29] Both Ms. Caverly and Ms. Prandovszky were concerned about the possibility of contracting SARS because part of their duties on that day involved meeting clients arriving at the Toronto East HRDC Resource Centre from Asian countries.

[30] However, as demonstrated by health and safety officer Conorton, there was neither an existing nor a potential hazard of contracting SARS for Ms. Caverly and Ms. Prandovszky. Specifically, there was no evidence that this hazard was present other than the fact that some clients were arriving from Asian countries where SARS was prevalent.

[31] In fact, neither employee could establish that there was a reasonable possibility that they would be in contact with a client showing symptoms related to SARS, or that they had indeed been in contact with a client who was infected or seemed to be infected by SARS.

[32] Given the definition of danger explained above and the facts submitted in this case, I agree with health and safety officer Conorton's decision. The evidence does not support a finding that a danger existed for Ms. Caverly and Ms. Prandovszky at the time of HSO Conorton's investigation of their refusals to work.

[33] Therefore, I confirm the decision that health and safety officer Conorton rendered on April 3, 2003 that there was no danger for Ms. Caverly and Ms. Prandovszky to work as duty officers when they refused to work on April 2, 2003.

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Summary of Appeals Officer Decision

Decision No.: 05-011

Applicants: Andrea Caverly and Karen Prandovszky

Respondent: Human Resources Development Canada

Key Words: Refusal to work, danger, Severe Acute Respiratory Syndrome (SARS)

Provisions:

Canada Labour Code 122(1); 128 Canada Occupational Health and Safety Regulations: N/A.

Summary:

Two investigation and control officers of the Toronto East HRDC Resource Centre refused to work because they were concerned about meeting clients coming from Asian countries where the Severe Acute Respiratory Syndrome (SARS) was prevalent, without being equipped with masks and gloves to protect themselves against the risk of becoming infected by SARS.

The appeals officer confirmed the decision of absence of danger rendered by the health and safety officer. The hazard of contracting SARS was neither existing nor potential. Specifically, there was no evidence that this hazard was present other than the fact that some clients were arriving from Asian countries where SARS was prevalent.