Archived - Decision 07-036 Canada Labour Code Part II Occupational Health and Safety
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Case No.: 2006-33
Decision No.: CAO-07-036
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Brian Duplessis |
This case was heard by Appeals Officer Serge Cadieux, in Saint John, New Brunswick, on June 19, 2007.
For the appellant
Robert D. Breen, counsel
For the respondent
Bradley D.J. Proctor, counsel
Federal Court Decision
[1] The present appeal results from the decision of the Federal Court in Brian Duplessis and Attorney General of Canada and Forest Products Terminal Corporation Ltd., [2006] FC 482, which quashed CLCAO Decision 05-059 made by Appeals Officer (AO) Pierre Guénette and referred the matter back for redetermination by a different Appeals Officer.
[2] In that case, the AO was seized of an appeal made pursuant to subsection 129(7) of the Canada Labour Code, Part II (the Code), by the applicant, Brian Duplessis, a stevedore in the employ of Forest Products Terminal Corporation Ltd.1 The appeal was brought against the decision of health and safety officer (HSO) Ian Rennie that danger did not exist for the employee at the time of the HSO’s investigation.
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Also referred to in the text as the company or as Forterm. |
[3] The Federal Court decision describes summarily, at paragraph 3, the background of the case which led to the HSO’s decision of absence of danger and the subsequent appeal under subsection 129(7) of the Code. Honourable Madam Justice Tremblay-Lamer described the alleged danger raised by Mr. Duplessis, which became the central issue to be decided in this case. Mr. Breen, Counsel for the appellant, referred to this issue in his opening statement and considered it critical and determinative in the instant case. Justice Tremblay-Lamer wrote:
[3] On February 1, 2005, the applicant was working as a stevedore for the Forests Product Terminal Corporation Ltd. (the employer) in the Port of Saint John when he was directed by his employer to put on a hard hat while performing his work. As a result, he exercised his statutory right to refuse to work, pursuant to section 128 of the Code on the contention that wearing a hard hat in his place of work constituted a “danger” according to section 122(1) of the Code, while performing the duties as a lead hand placing cutting boards to rotate paper rolls under the wing of the vessel, the MV Reefer Prince. The alleged danger was that while working under the wing of the hatch, there is more risk of being jammed between paper rolls or being crushed by a moving roll when being distracted by a hard hat that could fall off the lead hand’s head or create a visual obstruction preventing the lead hand from seeing a paper roll move unexpectedly.
[4] In her analysis of this matter, Madam Justice Tremblay-Lamer described the three operations involved in the unloading of paper rolls in the hold of the vessel. She wrote at paragraph 14 of her decision:
[14] In the present case, there are three separate operations involved in the unloading of the paper rolls into a vessel, those being: first, the crane unloading the paper rolls into the square of the hold of the vessel; second, the placing of the cutting boards to rotate the paper rolls to place or store them under the wing of the hatch in the vessel; and third, the final stowing and securing of the paper rolls.
[5] Madam Justice Tremblay-Lamer stated that the AO did not address himself to the alleged danger raised by Brian Duplessis. His decision considered the existence of danger for Mr. Duplessis in the first operation of the unloading of paper rolls, while the basis for Brian Duplessis’ refusal to work was solely that there existed a danger to wearing a hard hat while performing the second operation. Since the AO considered the existence of danger in the wrong work area, Madam Justice Tremblay-Lamer concluded that he did not address the question before him. Hence, the AO decision was quashed and referred back for redetermination by the undersigned Appeals Officer.
Investigation by the health and safety officer
[6] HSO Ian Rennie testified that, on February 1, 2005, he took a walk on the vessel MV Reefer Prince as part of a Port State Control Inspection. Looking down in the hold of the vessel, he noticed that some of the people there were wearing hard hats and some were wearing golf hats or ball hats. He made a comment to the supervisor present, in the form of a question: “Why are they not all wearing hard hats?” He continued on with his inspection. When he was finished, he went to the captain’s cabin to complete the paper work. While he was there, he was asked to come to Forterm’s office because there was a refusal to work by Brian Duplessis.
[7] The HSO met with Gary Alport, Forterm’s Operations Manager, Brian Duplessis and Mr. Weaver, health and safety representative, and had a general discussion about what was happening. He talked with B. Duplessis about his job and about what the restrictions were. Since the health and safety committee and the employer could not come to an agreement respecting Brian Duplessis’ refusal to work, he was asked to make a decision. The HSO’s Investigation Report and Decision informs us that
[i]t is the decision of the health and safety officer that wearing a hard hat in the cargo loading operation does not constitute a danger or a hazard to the employee.
[8] Under cross-examination, the HSO admitted that he could not see under the wing of the hatch, the area where Mr. Duplessis was working, and that he did not view or go into that area. He also admitted that he was not aware that there were three separate operations taking place in the unloading of the paper rolls in the hold of the vessel and that his decision did not consider this. He agreed with Mr. Breen’s assertion that under the wing of the vessel, nothing can fall and consequently there would be, to the best of his knowledge, no danger from falling objects in that area. On the other hand, the HSO agreed with Mr. Proctor that objects can fall in the hold of the vessel since there is activity going on above, such as the crane moving rolls of paper.
[9] The HSO testified that he was not aware that a risk assessment dated May 14, 1997(Exhibit E1) had been performed by the health and safety committee and revised on March 14, 2002. In that risk assessment, the committee recognized that there existed a risk of head injuries for hold men in general but recommended that hard hats not be worn because “…there is a greater risk of wearing the hard hat due to visibility”.
Testimonies
[10] Brian Duplessis testified that he has been a longshoreman since 1975. He is a member of Local 273 of the International Longshoremen Association (ILA) and has occupied the union position of vice-president and president for one term each. He explained that the duties of a longshoreman include receiving cargo from various modes of transportation (ships, rail and trucks) and loading and unloading the said cargo. He described the various positions and role occupied by members of Local 273. For example, checkers essentially tell longshoremen where to go and what to do with the cargo, such as rolls of paper, where to take it on the ship, where to place it, note any damage, etc. Mr. Duplessis has also served as employee co-chair on the company’s health and safety committee from early 1990 to when he became union president in 2002.
[11] On February 1, 2005, the vessel MV Reefer Prince was in port. He testified as follows:
It was there for the loading of rolls of corrugated at medium, a line of board used for making boxes etc. In these types of vessels, they load them on the roll [side]… instead of standing them up the conventional way. They come down, we roll them into the wing, we place them and then the ship liners secure them.
[12] Mr. Breen asked Brian Duplessis to describe each operation taking place in the loading of paper rolls, a reference to the three operations cited in Madam Justice Tremblay-Lamer’s supra decision. Mr. Duplessis explained that the crane would use two straps, i.e. wire straps with rubber on them, so as not to damage the paper roll. It would pick up one or two rolls, depending on the crane used to do the lifting, and bring them down into the square of the hatch. There were nine men in the hold. They would come out and release the straps. Three men would ensure the rolls did not roll away since the ship was constantly moving. The other men would move the rolls into the wing where Mr. Duplessis would be waiting with two cutting boards, which he would put under the rolls to pivot them and place them hard against the other rolls, to prevent them from moving during transportation. “That, said Mr. Duplessis, is what the cutting boards are all about.”
[13] Brian Duplessis explained that as the lead hand, he took the cutting boards and suggested where and how to place the paper rolls in an efficient and secure fashion. He was not working under the square of the hold of the vessel at any time but only under the wings of the hatch. He did not move back and forth between the square of the hold and the wings. He stayed under the wings at all times to do his job of placing the cutting boards. He would keep on working like this until he came at the end of the wings of the hatch, because the wings would then be filled. Once under the square of the hold, they would just land the rolls with nylon straps so they could be pulled off or they would just drop them off and roll them in. Brian Duplessis’ job of using cutting boards would then end since they very rarely used cutting boards in the square of the hatch.
[14] When asked what gave rise to this issue of danger, Brian Duplessis replied that it began two months earlier, when another stevedore doing the same job, Laurie Garfield, was jammed2 by a roll. He said:
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See Exhibit E2, Logistec Stevedoring (Atlantic) Inc. Hazardous Occurrence And Incident Report. |
The roll sort of got away because the ship took a list3 and jumped the cutting board. He didn’t get out of the way and he got jammed. It is at that point that I refused to put a hard hat on to do that job. That was in my mind. I didn’t feel like getting the same.
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The term “list” means (especially of a ship) a lean to one side. |
[15] Mr. Duplessis testified that the height of the hatch where he worked was roughly eight to ten feet high, with nothing else on the ceiling but lights. The hatch was approximately sixty feet long, with a distance of twenty feet from each corner of the square in the centre of the hatch. Each roll weighed approximately 2700 kg (5940 lb).
[16] Mr. Duplessis described the procedure he followed to place the cutting boards to position the rolls of paper. He said:
[W]e would roll the roll and if the roll isn’t in the correct position, we would have to drop the cutting boards, so you would have to do it quickly because you can’t do it way out here and you can’t do it way in there. You have to be almost precise. So you have to be quick. You have to bend down, drop the board quick and jump back. If it happens to jump or to bite, you could be jammed. You’re moving quickly. You have to be precise when you’re doing it otherwise you have to do it all over again.
(Emphasis added)
[17] The job was continuous. As Brian Duplessis stowed the two rolls that came down, another two rolls would come down and he would stow them as well, and so on, non-stop.
[18] When he refused to work, Mr. Duplessis was not wearing a hard hat. He testified that he did not wear it because:
I feel it is restricting my mobility, my ability to move. It keeps falling off; it keeps slipping off because of the sweating. All these conditions with the hard hat while I’m doing that job.
[19] The record shows at Exhibit E3 that, in his original statement of refusal to work, Mr. Duplessis wrote:
REFUSED TO WEAR A HARD HAT WHILE DOING THE LEAD HAND JOB IN THE HOLD OF REEFER PRINCE. ALL WORK WAS BEING DONE UNDER THE WING OF THE HATCH. 3 TONS ROLLS WERE BEING ROLLED INTO THE WING AND I WAS PLACING CUTTING BOARDS TO TURN THE ROLLS. THERE IS MORE RISK OF BEING JAMMED BETWEEN THE ROLLS WHEN BEING DISTRACTED BY A HARD HAT THAT COULD FALL OFF THE HEAD.
FOR THIS REASON I REQUESTED TO KNOW WHAT THE RISK WAS TO MY HEAD. SAFETY OFFICER REFUSED TO VIEW THE AREA WHERE I WAS WORKING.
[20] In the appeal document (Exhibit E4), Mr. Duplessis particularized the issues he was dealing with. He said:
There is a greater risk of me getting jammed between the rolls because of being distracted by the hard hat falling off my head or moving because I was constantly bending over to place the cutting boards under the rolls and moving quickly to get out of the way in case the roll jumped as it did when Laurie Garfield got jammed not one month earlier.
(Emphasis added)
[21] Those were the issues in Brian Duplessis’ mind at the time of his refusal to work. Therefore, when he was instructed by his supervisor to put the hard hat on, since he was not wearing it, Mr. Duplessis exercised his right to refuse to work for these reasons. He felt that wearing the hard hat under these conditions was a greater danger to him than not wearing it.
[22] Although Brian Duplessis asked the supervisor to come down to see his working conditions, the supervisor refused. When he asked to have HSO Rennie come down for the same reason, he was again turned down. The investigation by the HSO followed and a decision of absence of danger was rendered.
[23] At the time of his refusal to work, Mr. Duplessis testified that he was aware of the existence of the risk assessment referred to above. It had been prepared by the health and safety committee for the waterfront and a representative of each of the companies and a union representative sat on the committee. It made specific reference to Forterm. Brian Duplessis was aware that it recommended that hard hat not be worn because “…there is a greater risk of wearing the hard hat due to visibility”.
[24] When asked to show what he was actually doing in his job, Mr. Duplessis described his actions as follows:
I have cutting boards in my hand. The roll is coming in and if I need to cut it right there, I need to jump in, place the board and jump back out. As simple as that: you’re moving all the time.
(Emphasis added)
[25] Brian Duplessis reiterated that nothing could fall from above on his head. Furthermore, he added that nothing could stop the roll from rolling other than the cutting board used to position the rolls against the other rolls. It was in the nature of the job to have the rolls moving.
[26] In reply to questions put to him by Mr. Proctor, Mr. Duplessis stated that although he did not decide where the rolls would be positioned, he would suggest to the crew in the square of the hold what general direction it should go and the crew would angle the rolls accordingly and roll them in that direction. However, he did not communicate with the hatch tender, i.e. the person on top of the hatch communicating with the crane operator and the individuals down in the hold who were taking the straps off and placing the rolls in the general direction specified by Mr. Duplessis.
[27] Mr. Duplessis agreed with Mr. Proctor that there were times when he had to come out of under the wings. In those cases, he always had his hard hat on, because he would bring it with him under the wings in case he needed to put it on to come out. Even when a roll was halfway between the square of the hatch and a wing, B. Duplessis was adamant that he was still working under the wing and remained there until the wings were filled. He acknowledged that he would eventually work under the square of the hatch when the wings were filled. When this happened, he would put on his hard hat since he no longer used cutting boards to place the rolls.
[28] When Mr. Proctor made reference to the accident that occurred in 2004 to Laurie Garfield (Exhibit E2), Mr. Duplessis acknowledged that wearing the hard hat was not a contributing factor in that accident. According to him, Mr. Garfield was hurt because of a roll jumping the cutting board. He did not wish to be in the same position. He felt that the hard hat placed him in a more vulnerable position to be hurt. Furthermore, it was B. Duplessis’ opinion that chin straps were not helpful since the hat keeps falling off simply by having to look up.
[29] Mr. Gary Alport had been Forterm’s Operations Manager since 2001. He oversees the operations of the facility, of the terminal and of ship loading. He has been the employer health and safety committee co-chair since 2004. Mr. Alport emphasized that safety is paramount at Forterm. The employer continually develops health and safety policies, because things change: ships, safety standards, health and safety, techniques, the quality of hard hats, etc…
[30] Mr. Proctor introduced a series of policy documents (Exhibit E5) dealing with hard hats. The policies essentially state that hard hats are to be worn by all individuals working on vessels, including in the hold. As the dates changed on the policy documents, Mr. Alport explained that the purpose of the documents was to reinforce the company’s policies vis-à-vis safety equipment in general and, in the instant case, hard hats. Some documents were directed at employees in general, some at superintendents, others at managers and supervisors. Compliance with the hard hats policies is mandatory. The policies are enforced through disciplinary measures, although making people understand the importance of wearing hard hats was viewed as more important.
[31] Gary Alport stated that hard hats are made readily available to employees and that employees were given training on the proper use of the hats.
[32] Mr. Alport explained that upon receiving notification of Brian Duplessis’ actions, he treated this as insubordination, since the employee refused to comply with a company policy. It was Gary Alport’s view that Brian Duplessis never reported a health and safety concern until someone ordered him to comply with the hard hat policy. For this reason, he felt that it did not come within the purview of the Canada Labour Code. He later contacted HSO Ian Rennie to have the matter investigated under the Code. Gary Alport admitted to Mr. Breen that he did not view the site where Mr. Duplessis refused to work.
[33] With respect to the risk assessment document referred to above, Gary Alport explained that it was developed in conjunction with the health and safety committee for the whole Port of Saint John. Therefore, it involved employer and employee representatives of all companies in the Port of Saint John, including two managers of Forterm, Bruce Harding in 1997 and Sandy Thomson in 2002.
Mr. Alport emphasized that this risk assessment was not company policy; it was a tool based on subjective information and opinions. He did however acknowledge that he was not involved in its development. He accepted Mr. Breen’s statement that it constituted an in-house analysis to determine areas of risk, including areas where there was a possibility of head injuries. He furthermore accepted that the risk assessment resulted in hard hats exclusion zones.
[34] Mr. Alport explained that some employees working in the loading of vessels, such as crane drivers or wharf drivers, did not need to wear hard hats. These individuals, which were identified in the risk assessment, worked inside a cabin and were therefore protected while within the cabin.
[35] Other groups of individuals identified in the risk assessment, i.e. hatch tenders, hold men, hold lift operators, slingers, etc., were subject to head injuries but it was recommended that they not wear hard hats. The rationale for this was given in a note referred to by an asterisk attached to each group, e.g. hold men*, which read:
*note: There is a risk of head injuries but there is a greater risk of wearing the hard hat due to visibility.
Mr. Alport disagreed with the position of the committee recommending that hard hats not be worn. He was adamant that it did not constitute company policy and that the company did not endorse this recommendation. He felt for example that hatch tenders were subject to head injuries and should wear hard hats. He was however hesitant in agreeing with Mr. Breen’s general statement that employees working with something over their head, such as crane operators, did not need to wear hard hats.
[36] Describing what hold men did and where they were located, Gary Alport said that hold men work in the hold of the ship. He added that it was hard to visualize this because ships differ from one another. The MV Reefer Prince is a multi deck ship. Some ships have very deep wide open holds. He explained that the square of the hatch was an opening in the hatch. It is the means by which one can get cargo in, to and out of the hold of the ship. When loading cargo of rolls of paper, one would first load an end as opposed to a side because a ship will move. Then one would gradually load the sides, i.e. side to side. The key was to balance out the two sides. Eventually, hold men would have to work under the opening in the hatch and move back and forth under the square of the hold.
[37] Mr. Alport explained that every time work was going on overhead, there was a risk of something falling. It could be anything, such as a load of grease hardened during winter, debris; leaning over a hatch could cause something to be knocked over, etc. According to him, it was not possible to engineer out the falling of objects through the square of the hatch. Other than something falling, he stated that there was also the risk of bumping one’s head into something because the ceiling was less than eight feet, notwithstanding earlier testimonies to the contrary. Also, the cable of a crane could snap, as evidenced by Exhibit E9, and enter under the wing six or seven feet and injure the individual working there, such as Brian Duplessis. Finally, Gary Alport insisted that the hard hat was not a contributing factor to Mr. Garfield’s accident.
[38] In commenting the accident that occurred to Mr. Garfield, Gary Alport stated that, in rolling the roll into position,
it basically got away from him, and that unfortunately is an inherent danger and is something we continually instruct our employees on vigilance. It pinned him between that roll and another roll.
(Emphasis added)
[39] Mr. Alport explained that to stop a roll, you must throw something under the roll such as a block, a chock, a paddle. However, the best way is to simply get out of the way of the roll. There are ship liners4 working in the hold and their job is to secure the cargo in the wings. Hence, there are times when the rolls are overlapping between the opening of the hatch and the wings. Mr. Alport was of the opinion that there were risks of head injury in the hold and wearing a hard hat was necessary to protect the employee. He did not believe that the visibility of the employee was impaired by wearing the hard hat.
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Although the role of ship liners was not fully explained at the hearing, Mr. Proctor submitted that ship liners have chocks on them and could intervene if necessary. |
[40] Pat Riley has been a full time business agent with Local 273 of the ILA since 1986. Prior to this, he served as co-chair of the health and safety committee for the Port of Saint John, from the time it was formed in 1979 until 1984. Mr. Riley stated that the committee consults with him on health and safety matters and there are times when he may intervene on behalf of the union on matters that affect their relationship with the employers’ association.
[41] In reference to the risk assessment, Mr. Riley stated that he took part in bringing it together. He sat on the Port of Saint John health and safety committee in May1997 when the risk assessment was first developed and in March 2002 when it was revised. Mr. Riley explained that the risk assessment was generated by the Port of Saint John health and safety committee, by Local 273 of the ILA and by the employers’ association in both 1997 and 2002. The committee went to great length to ensure it consulted everybody, i.e. all the employers on the waterfront, the employees directly and the unions directly, to ensure that everybody had input in the assessment.
[42] Mr. Riley stated that an earlier statement made by Gary Alport to the effect that the risk assessment was not developed on the basis of statistics was totally incorrect. Accident statistics for the previous five years to 2002 for head injuries, for every occupation on the waterfront, were taken into consideration and a longer period was considered prior to 1997. Mr. Riley confirmed that both management officials named above took an active part in the development and revision of the risk assessment. In fact, he affirmed that he consulted directly with Mr. Harding as well as with other senior officials of the Port of Saint John association and individual companies in putting together the risk assessment. Hence the committee consulted with everybody before it finalized the document.
[43] Mr. Riley testified that there was a very serious accident in 1979 involving hard hats that was in the minds of people on the committee during the development of the risk assessment: A man was working under the wing of the hatch and wearing a helmet. He stepped out of under the wing and looked up. He thought everything was clear and walked out of under the wing. The crane driver saw him coming and brought the load to an abrupt halt. The cable snapped. The roll of liner board, similar in size to the ones in this case, fell and bounced upon the man and killed him. There was an inquest into the accident and the jury found that a longshoreman’s vision should not be impaired in any way when working in the hold of the hatch. From that day on, longshoremen took the position that hard hats are associated with a vision problem.
[44] Mr. Riley was referred to Exhibit E10, a stack of documents originally submitted by Bruce Harding, General Manager Operations for Forest Products Terminal Corporation Ltd. The documents had been submitted on March 18, 2002 in response to an Assurance of Voluntary Compliance received by a HSO. In that document, under the heading PROTECTIVE HEADWEAR, Mr. Harding wrote to the HSO:
The Committee agreed that protective headwear would be of benefit to employees working in certain designated areas of the Port. These areas were designated after a review of the various workplace areas and accidents over the last five years which revealed none during that period. Specifically, the Committee recommended to designate the wearing of headwear at the Container Terminal when work is performed on deck, in the hold and on the wharf in the immediate area of the leg of the crane.
The Committee also discussed the areas noted during your visit, specifically slingers, hatchtenders and holdmen on conventional vessels. It is the Committee’s opinion that the reduced visibility caused by the hard hats would outweigh any safety benefit in what the Committee members consider to be low hazard areas for the following reasons:
- The highest risk is being hit by a unit of pulp or roll of newsprint and one’s safety is more dependent on having the widest range of vision so danger can be recognized as soon as possible to take evasive action.
- The use of hard hats does reduce the overall field of vision, thus reducing reaction time.
- The employees in these jobs spend a much higher percentage of their time looking up to track the cargo and cranes during ship loading and are of the opinion the use of a hat would reduce their safety.
Also many safety practices are in place which protect employees from being exposed to injuries from above such as:
- Companies employ a full time hatchtender whose sole responsibility is to act as Signal man between the crane driver, holdmen and slingers. This is to ensure that men in the hold are clear when slings are being brought into the hold.
- Employees are instructed to walk offshore when traveling on deck.
- No slings are hoisted over the heads of any employees.
For the reasons outlined above Section 12.2 a) should take precedent over Section 12.4.
We will be implementing a mandatory Headwear Policy once we have finalized the type and process to supply the headwear. We will notify you of an implementation date by May 23rd, 1997.Attached is a copy of a Safety Notice which outlines the Policy to be implemented at the Port of Saint John. Please…
[45] The Safety Notice referred to above, which was attached, emphasized that employees were to wear hard hats in designated areas. In addition to the notice, the 1997 risk assessment document, also attached, recommended that hold men working for Forterm not wear hard hats.
[46] Mr. Riley strongly agreed with the written statement made by Mr. Bruce Harding, in a letter dated March 20, 2002 (Exhibit E11) submitted in a separate appeal, which read:
Over the last several years the employers and employees have again conducted their own in-house risk analysis to determine areas of risk. This has included a review of head injuries over the years and an examination of each job function to determine the risks and protection provided by hard hat use. This has resulted in the adoption of hard hat zones being established in some areas of Port operations.
(Emphasis added)
[47] Mr. Riley was of the opinion that
[i]f you can look up when something is happening, it gives you that much more reaction time and you can get out of the way.
[48] Finally, Mr. Riley stated that chin straps were not necessarily designed to keep a hard hat fixed on the head. When people were working, and not just walking and adjusting the strap as needed, they were sweating and their hair became wet. This caused the hat to rock forward and backwards when the employee was either looking up or bending forward. The hat was currently being studied in Montreal with a view of re-designing it with a shorter peak as it was elsewhere in the world.
Arguments for the appellant
[49] Mr. Breen submitted that the specific question to be decided in this case was found at paragraph 24 of the Federal Court supra decision. It reads:
[24] In summary, at no time does the appeals officer address the question of whether a hard hat was a “danger” to the applicant while performing the particular work of placing the cutting boards to position rolls of paper in the hold of the vessel. This was the sole basis for the applicant’s refusal to work.
(My underlining)
[50] Mr. Breen added that it was not just the general reference to working in the hold of the vessel that was most important but working while under the wings of the vessel, since when Mr. Duplessis came out of under the wings, he wore his hard hat. Hence the issue was specifically the placing of cutting boards to position rolls of paper while under the wings of the vessel.
[51] Mr. Breen pointed out that the HSO admitted, as the Court told him, that it was an error for him not to view the site. The HSO also agreed that there was no risk of injury from anything falling on anyone’s head while working under the wing. Therefore, there was no danger under the Code from falling objects when working under the wing. Brian Duplessis made it clear that he felt that the hat would constitute a danger to him by falling off or obstructing his view in some way that he might end up being jammed by the rolls of paper. What had to be remembered, said Mr. Breen, was that in the Port of Saint John, there was an acknowledgement that when there was no danger of something falling on one’s head, for example, when operating a crane or a machine, there was no requirement to wear a hard hat. As an analogy with crane operators, Mr. Duplessis literally had a roof over his head when working under the wing.
[52] The risk assessment referred to in this case was a highly prepared document involving labour and management. The development of this risk assessment document was perfectly consistent with the role of health and safety committees under the Code. The document specifically made reference to the job that Brian Duplessis did since, as Mr. Riley testified, all the job functions in the hold of the vessel were considered. In that document, which was prepared in 1997, under the heading Forterm – Vessels, there were four classifications5 where a “Yes” was given in answer to whether there was a risk of head injuries, but there was a “No” with respect to the wearing of hard hats because of the accompanying note which said:
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Hatch Tender, Hold Men, Hold Lift Operators, Slingers. |
There is a risk of head injuries but there is a greater risk of wearing the hard hat due to visibility.
[53] That document, argued Mr. Breen, was the most reliable document there was because it was developed by both parties. On the other hand, the documents introduced by Mr. Proctor were contradictory because these documents, which were policy documents, said that one must wear a hard hat in all instances.
[54] Therefore, said Mr. Breen, the only question before me was whether Brian Duplessis was justified in his refusal to work on that day and in those circumstances to consider that wearing a hard hat was a danger to him. He opined that I should conclude that he was justified and confirm the existence of danger.
Arguments for the respondent
[55] Mr. Proctor submitted that, as the employer, Forterm had legal duties imposed upon it by the Canada Labour Code. Sections 122.1 and 122.2 of the Code state:
122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.
122.2 Preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.
[56] The evidence submitted in this case showed that hazards could not be entirely eliminated, such as falling debris from overhead work. Policies for hard hats had been adopted from 1997 onwards. They were in place at the time of the refusal to work and it was Mr. Proctor’s position that they were and had always been consistent. They required that hard hats be worn in the hold of the ships by hold men. Letters written by company representatives in response to other appeals were not company policy.
[57] Mr. Proctor referred to Exhibit E6, Logistec Stevedoring ( Atlantic ) Inc., Safety Equipment Policy, revised on February 7, 2005, as the current policy. It was no different from the previous Exhibit E5 policy, except that it was re-issued after Mr. Duplessis’ refusal to work of February 1, 2005, to clarify to all employees what the policy was with respect to hard hats.
[58] Evidence was presented, said Mr. Proctor, to suggest that the occupational health and safety committee and the employer were one and the same. That was not the case. If one read the Code and more specifically sections 124 and 125, it was Mr. Proctor’s opinion that there were obligations imposed upon employers, and only upon them, he emphasized. Under those sections, the employer must ensure6 the health and safety of every person employed by the employer. The occupational health and safety committee is a mechanism which permits employees and unions to provide input into the employers’ obligation to provide a safe workplace. Mr. Proctor was clear: the committee providea input in setting policy but it does not set policy.
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Mr. Proctor noted that the word “ensure” is a very stringent term used by the legislation. |
[59] Mr. Proctor noted that the Marine Occupational Health and Safety Regulations (the Regulations) also applied in this case. Mr. Alport testified that it was not possible to eliminate all the hazards from falling objects or striking one’s head and, for this reason, hard hats were required to be worn in compliance with section 10.1 of the Regulations. The issue today was whether the hard hat created by itself a hazard, as intended under paragraph 10.2(b) of the Regulations.
[60] Mr. Proctor submitted that to uphold Mr. Duplessis’ refusal to work as reasonable, I must decide whether or not he identified a sufficient hazard or danger under the Code to justify his refusal to work. In his opinion, everything heard at the hearing was nothing more than speculation: a mere risk of injury i.e. that the rolling of the roll of paper could possibly injure him. There was no evidence to support this. It was shown that the wearing of a hard hat was not a contributing factor in the accident that occurred to Laurie Garfield in 2004. It was therefore the employer’s position that, on February 1, 2005, Brian Duplessis could not identify under section 128 a danger as defined in section 122 of the Code.
[61] Mr. Proctor agreed with Mr. Breen that the Federal Court identified at paragraph 24 of the supra decision the issue in this case. In reviewing the evidence, we note that the employer had mechanisms in place, before the refusal to work, to reduce any danger from rolling paper rolls, i.e. having a planned escape route and a ship liner with chocks on him.
[62] Mr. Proctor submitted jurisprudence in support of the employer’s position and to provide guidance and direction in the instant case.
[63] In Martin v. Canada (Attorney General), 2005 FCA 156, which dealt with danger to park wardens who, as a result, were seeking to be armed to carry out their duties, the Federal Court stated at paragraph 37:
[37] I agree that a finding of danger cannot be based on speculation or hypothesis. However, when attempting to ascertain whether a potential hazard or future activity could reasonably be expected to cause injury before the hazard could be corrected or the activity altered, one is necessarily dealing with the future. Tribunals are regularly required to infer from past and present circumstances what is expected to transpire in the future. The task of the tribunal in such cases is to weigh the evidence to determine whether it is more likely than not that what an applicant is asserting will take place in the future.
(Emphasis by Mr. Proctor)
[64] In Chapman and Canada Customs and Revenue Agency, [2003] CLCAO Decision 03-019, which dealt with the Severe Acute Respiratory Syndrome (SARS) outbreak at Pearson International Airport (PIA) in Toronto, the Appeals Officer stated at paragraph 83:
[83] … and the fact that two passengers previously cleared through Customs at PIA had died from SARS suggested that it was certainly within the realm of “possibility” that a SARS infectious passenger could have arrived at Customs at PIA and expose Mr. Chapman to SARS. However, there were no facts to establish that a SARS infectious passenger was actually aboard a flight destined for PIA that would arrive at Customs during Mr. Chapman’s shift or was about to board such a flight. I conclude, therefore, that Mr. Chapman’s fear that he would be exposed to a SARS infectious passenger was hypothetical and not based on fact.
[65] In Caverly and Human Resources Development Canada, [2005] CLCAO Decision 05-011, which again dealt with a SARS outbreak at a Toronto HRDC Resource Centre, the Appeals Officers gave at paragraph 27 a list of criteria to be applied to the concept of danger. Specifically, the AO made reference, as she did in paragraph 31, to the concept of “reasonable possibility” of injury occurring.
[66] In Hogue-Burzynski et al. and Via Rail Canada, [2006] CLCAO Decision 06‑015, which dealt with insalubrities in rail cars and possible exposure to the Norwalk-like virus, the Appeals Officer stated at paragraph 85:
[85] Finally, I have to ask myself if circumstances may occur in the future as a reasonable possibility, as opposed to a mere possibility or a high probability, that may cause injury or illness to a person exposed to them.
[67] In Darren Welbourne and Canadian Pacific Railway Company, [2001] CLCAO Decision 01-008, which dealt with the possibility of a blow pipe under pressure coming apart, the Appeals Officer stated at paragraph 25:
[25] The speculative possibility that Mr. Welbourne could be injured in the manner described by him as a result of the blow pipe coming apart at the clamp does not meet the definition of “danger” under the Code.
[68] All those cases, said Mr. Proctor, stood for the proposition that there was a difference between a mere possibility and a reasonable possibility. One had to look at the evidence of what could possibly have occurred on February 1, 2005 regarding the issue of wearing the hard hat and the paper rolling. Other than referring to accidents that occurred in the past in which hard hats were not a contributing factor, there was, according to Mr. Proctor, no evidence that an accident could occur to Mr. Duplessis.
[69] Mr. Proctor addressed himself to the issue of rolling paper. He acknowledged that it could have been a potential risk, but it was a risk which was under control. It was only speculative that it would have rolled that day, since the risk was indeed under control. The mechanisms in place, such as the ship liners with the blocks on hand or to be aware and have a ready escape route, were control mechanisms that, if a roll of paper had rolled towards the employee, should have enabled the employee to react. Mr. Proctor suggested that paragraph 90 of the Via Rail supra decision applied here. It reads:
[90] Consequently, because the employer did everything to minimize the exposure of the employees, I view this minimal possibility of exposure to a Norwalk-like virus as a normal condition of work.
[70] In addition to the Via Rail case, supra, it was the employer’s position that when something under subsection 128(2)(b) of the Code was a normal condition of employment, there were no grounds for a refusal to work. Hence, working aboard a ship and loading and unloading a cargo may have presented a hazard associated with that work, i.e. that the cargo could move. However in this case, the employer had taken adequate safety measures under the Code to control that hazard.
[71] Mr. Proctor submitted that the risk assessment referred to in this case was a tool under the Code, but it was not a policy. It did not govern the rule of the workplace. It had been the employer’s policy since 1997 that hard hats were mandatory. There were exceptions to this policy, such as employees working in a crane because they were covered by the cab or individuals moving equipment because they were covered by a cage. Although Mr. Proctor acknowledged that the policy was not consistent with the risk assessment, it was the policy and the policy governed. The policy was the workplace rule. The policy was the employer exercising and satisfying its duty under section 124 of the Code.
[72] Mr. Alport, the Operations Manager, testified about evidence of hazards that could occur, such as ice or grease falling, the use of walkie-talkies, plywood falling, bumping of the head, etc. There was a mention of an individual bumping his head in the hold of a ship. It was reported that wearing a hard hat was a mitigating factor that prevented more significant injury from occurring. Mr. Alport testified that it was possible that when a cable of a crane breaks, it can fly in any particular direction, including under the wings. It would be a false sense of security to believe employees are protected while under the wing.
[73] Mr. Proctor argued that although the HSO made the error of not going into the hold to investigate the refusal to work, he did see employees in there wearing baseball caps. He was able, said Mr. Proctor, to conclude that by not wearing a hard hat, they were at significant risk from falling material.
[74] Mr. Proctor referred to CLCAO Decisions [2003] 03-013, 03-014 and 03‑015 in Forest Products Terminal Corporation Ltd. and International Longshoremen Association (ILA), Local 273. The cases dealt with one employee refusing to wear a hard hat because it blocked his vision and another employee refusing to wear the hard hat because it restricted his mobility. The employees were exposed to hazards while working on the docks. Although those cases dealt with the refusals of employees to wear hard hats, Mr. Proctor acknowledged that these decisions did not consider employees working in the hold of a ship under the wings of the hatch.
[75] In Neptune Bulk Terminals (Canada) Ltd. V. International Longshore and Warehouse Union, Ship and Dock Foremen, Local 514, [2004] C.L.A.D. No. 505, which dealt, under the process of a labour arbitration, with the company’s policy requiring all employees to wear a CSA standard hard hat, the arbitrator concluded that the company’s mandatory policy on hard hats was reasonable and upheld the policy.
[76] In view of everything said above, Mr. Proctor was of the opinion thatMr. Duplessis’ work refusal was not justified in the circumstances.
[77] Mr. Breen drew the Appeals Officer’s attention to the following facts, where a decision of absence of danger was rendered. In the Via Rail case, supra, the potential danger was gone when the employee refused to work. In the SARS cases, supra, there had to be a reasonable possibility of exposure to the SARS virus. In the Darren Welbourne case, supra, the finding was that there was no reasonable expectation of injury. All these cases are talking about reasonableness.
[78] Furthermore, Mr. Breen opined that under 125(1)(z.03) of the Code, the employer is required to develop, in consultation with the committee, policies that affect employees. Mr. Breen submits that the risk assessment referred to in this case was exactly that.
Decision
[79] Before addressing the issue to be decided in this case, I will answer the following preliminary matters that were raised by the parties at the beginning of and during the hearing.
[80] Firstly, the parties acknowledged that it would not be possible for the undersigned Appeals Officer to view7 Mr. Duplessis’ work area and conditions aboard the vessel MV Reefer Prince or any other similar vessel. The ship had departed and no other vessel having similar working areas and conditions was available at the time of the hearing. However, three photos and a schematic diagram showing the various working areas and conditions in the hold of a similar vessel were tendered by Mr. Breen as Exhibit E2. This evidence was helpful in the instant case.
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Madam Justice Tremblay-Lamer commented on the error made by the Appeals Officer in considering the existence of danger in the wrong work area. She wrote at paragraph 20 of her decision:
|
[81] Secondly, Mr. Breen raised the issue of the limitations imposed upon an Appeals Officer hearing an appeal de novo. He suggested that under these conditions, I could not receive new evidence and that I should be limited to the same evidence that had been submitted by the parties in the original appeal to this case. I disagree. Subsection 145.1(2) of the Code provides:
145.1(2) For the purposes of sections 146 to 146.5, an appeals officer has all the powers, duties and immunity of a health and safety officer.
[82] I interpret this provision to mean that once an Appeals Officer is seized of a particular appeal under the Code, he or she has, in addition to all the powers, duties and immunity conferred upon an AO, all the powers, duties and immunity of a health and safety officer acting under the Code. For example, the AO sitting on an appeal of a decision or a direction issued by a HSO can utilize the powers of a HSO to view8 a site or to issue a direction under subsection 145(1)9 of the Code, even though those powers are not specified as such for the AO in the Code. Hence, the AO hearing a matter de novo has sufficient powers to receive any new evidence, including evidence that a HSO could or should have received, as long as it relates to the circumstances that gave rise to the refusal to work or the issuance of the direction under appeal.
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Brian Duplessis v. Attorney General of Canada and Forest Products Terminal Corporation Ltd., 2006 FC 482, at paragraph 20. |
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Martin v. Canada (Attorney General), 2005 FCA 156, at paragraphs 26-28. |
[83] Thirdly, when Mr. Proctor introduced as Exhibit E5 a series of policy documents dealing with hard hats, Mr. Breen objected to their introduction on the basis of the limitations that should be imposed on the AO hearing a matter de novo and on the basis of their relevance. The documents were deemed to be relevant in the instant case and given the powers of the AO mentioned above, they were received.
[84] Finally, Mr. Proctor closed his submission by arguing that in the original appeal on the matter, the AO ordered that a risk assessment of Brian Duplessis’ job be performed, which was done and finalized on February 15, 2006. He intended to enter this document into evidence but Mr. Breen objected, on the basis that the Federal Court quashed the decision of the AO in its entirety. Also, this document was not developed with the agreement of the health and safety committee or the union, although Mr. Proctor indicated that a union member did take part in its development but was uncertain whether the union agreed with the results. Therefore, Mr. Breen submitted that this document did not exist in law, was null and void and must be rejected.
[85] Having heard these arguments, I agreed with Mr. Breen mostly for the same reasons he presented and rejected the introduction of this new risk assessment. For these reasons, I find that the risk assessment is not admissible. Furthermore, since Local 273 was unaware of the existence of this document, I believe that my judgment would be perceived as tainted if I were to rely on a document that dealt with the specific issue before me.
[86] The issue to be decided in the present case is, as reported in the Federal Court supra decision and agreed upon by both Mr. Proctor and Mr. Breen:
…whether a hard hat was a “danger” to the applicant while performing the particular work of placing the cutting boards to position rolls of paper in the hold of the vessel.
[87] Since the use of the word “hold” can be confusing given that it encompasses many work areas aboard a vessel, I would add, for the purpose of clarity, the description offered by the Court at paragraph 19 of the decision, which reads:
[19] Clearly, the appeals officer failed to differentiate between the different operations of work done by different individuals in the hold of the ship. The work area in question before him (i.e. in which the applicant refused to work) was under the wing of the hatch in the vessel placing cutting boards to rotate the paper rolls.
(Emphasis by Madam Justice Tremblay-Lamer)
[88] In order to decide whether a danger exists, as defined under the Code, I must refer to the definition found at section 122(1) of the Code:
"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[.]
[89] The most recent Federal Court of Appeal decision dealing with to the concept of “danger”, as defined in the Code, is Douglas Martin and Public Service Alliance of Canada and Attorney General of Canada, 2005 FCA 156. Specifically, the Federal Court of Appeal concluded its analysis as to whether park wardens were in danger in carrying out their law enforcement duties without being provided with hand guns to do so by stating, at paragraph 42:
[42] It is not for this Court to weigh that evidence or to come to any conclusion about whether the evidence rose to the level of a reasonable expectation of injury, or indeed whether park wardens should be issued handguns. That is for the appeals officer to decide.
(My underlining)
[90] On the issue of danger in the instant case, Mr. Proctor has submitted jurisprudence, such as Darren Welbourne, supra, to support his argument that the speculative possibility of injury occurring is outside the interpretation to be given to a danger as defined in the Code. In reply, Mr. Breen argued that this decision made specific reference to the doctrine of reasonable expectation of injury rather than mere speculation. Mr. Breen is correct. In that supra decision, I concluded at paragraph 24:
[24] In my opinion, there is no reasonable expectation that Mr. Welbourne, or any other person exposed to the same situation, could be injured either immediately or any time in the future.
[91] The other decisions introduced by Mr. Proctor support an almost identical approach, i.e. a reasonable possibility of injury as opposed to a mere possibility of injury. I agree with Mr. Proctor on this point and I will apply the above mentioned principles in the instant case.
[92] I would add that there exists other jurisprudence dealing with the concept of danger, including the element of time which is an integral part of the definition of danger.
[93] Prior to the Federal Court of Appeal decision in Douglas Martin, supra, the Federal Court looked at the definition of danger as well as the element of time included in the definition in two consecutive decisions. The first decision was Martin v. Canada (Attorney General), [2003] FC 1158, by the Honourable Justice Tremblay-Lamer. The second decision was Juan Verville v. Service Correctionnel du Canada, Institution Pénitentiaire de Kent, [2004] FC 767, bythe Honourable Justice Gauthier.
[94] It should be stated that the most recent one, Juan Verville, supra, constitutes an important decision with respect to the interpretation to be given to danger as defined in the Code. In that decision, Justice Gauthier expanded on the analysis performed earlier by Justice Tremblay-Lamer of the concept of danger and its element of time. In doing so, Justice Gauthier established, in paragraphs 34, 35 and 36, detailed principles to be applied when interpreting danger with emphasis on the element of time. She wrote:
[34] The above statement is not entirely accurate. As mentioned in Martin, supra, the injury or illness may not happen immediately upon exposure, rather it needs to happen before the condition or activity is altered. Thus, here, the absence of handcuffs on a correctional officer involved in an altercation with an inmate must be reasonably expected to cause injury before handcuffs are made available from the bubble or through a K-12 supervisor, or any other means of control is provided.
[35] Also, I do not believe that the definition requires that it could reasonably be expected that every time the condition or activity occurs, it will cause injury. The French version « susceptible de causer » indicates that it must be capable of causing injury at any time but not necessarily every time.
[36] In that respect, I do not believe either that it is necessary to establish precisely the time when the potential condition or hazard or the future activity will occur. I do not construe Tremblay-Lamer’s reasons in Martin above, particularly paragraph 57, to require evidence of a precise time frame within which the condition, hazard or activity will occur. Rather, looking at her decision as a whole, she appears to agree that the definition only requires that one ascertains in what circumstances it could be expected to cause injury and that it be established that such circumstances will occur in the future, not as a mere possibility but as a reasonable one.
[95] Hence, I must look at the evidence submitted in this case and decide whether it supports a finding that there exists a reasonable expectation that Mr. Duplessis will be injured in carrying out his work while wearing a hard hat. Furthermore, in considering the element of time included within the definition of danger, I must satisfy myself that the circumstances that are expected to cause injury to Mr. Duplessis will occur in the future as a reasonable possibility.
[96] Contrary to Mr. Proctor’s argument that everything heard at the hearing is pure speculation, there is ample evidence which, taken globally, indicates that Mr. Duplessis could reasonably be expected of being injured in performing his work before measures are taken to protect him. For example:
- There are rolls of paper weighing approximately 3 tons each moving in the direction of Mr. Duplessis to be stowed. Nothing, said Mr. Duplessis, can stop a roll from rolling other than the cutting boards.
- Mr. Duplessis must decide where and how he will stow the moving roll. Having decided this, he must bend forward and drop the cutting board under the moving roll of paper to position the roll. He must do this precisely and quickly. He must jump back out quickly once the cutting board has been placed so not to be hit by a moving roll which, given its weight, would likely injure him severely or even kill him. As he testified:
- I have cutting boards in my hand. The roll is coming in and if I need to cut it right there, I need to jump in, place the board and jump back out. As simple as that: you’re moving all the time.
There is very little, if any, margin for error under these circumstances. - The job is continuous as rolls of paper keep moving in his direction. Often, two rolls of paper are unloaded in the hold and both are rolled successively in his direction, giving him little time to position the first roll. He must then turn his attention to the second roll coming towards him to be positioned as well. In the meantime, two additional rolls of paper are being unloaded in the hold to be stowed by Mr. Duplessis. Mr. Duplessis must remain focused in carrying out his job. Under these circumstances, he cannot allow himself to be distracted. The consequences of any distraction can be disastrous.
- The working conditions under the wings of the hatch are difficult as the ship is constantly moving, causing general instability of the vessel and of the rolls of paper, not to mention that the vessel can lean to one side under certain circumstances. In such cases, a roll of paper could jump a cutting board and hit Mr. Duplessis as it did Mr. Laurie Garfield. This could reasonably happen while Mr. Duplessis is placing cutting boards or after he has completed this operation. Instructing employees on vigilance is clearly insufficient. Having an escape route would not be helpful to Mr. Duplessis when he is bending forward quickly to place the cutting boards. Also, although ship liners are present to secure the rolls of paper, there would be insufficient time to react and protect Mr. Duplessis while he is placing the cutting boards.
[97] To compound the problem, Mr. Duplessis is sweating profusely and must wear a hard hat which, he has testified, keeps slipping or falling off. This is due to the rapid movements he is making while placing the cutting boards. With respect to chin straps, it was Mr. Riley’s uncontradicted testimony that, when people are working, they are sweating and their hair becomes wet. This causes the hat to rock forward and backwards when the employee is either looking up or bending forward. In my opinion, the hard hat interferes, as Mr. Duplessis has testified, with his vision and, as a consequence of this, with his mobility.
[98] Other than a comment made by Mr. Alport to the effect that he does not believe that the hard hat interferes with Mr. Duplessis’ vision, the testimony of Mr. Duplessis is highly credible. I give a great deal of weight10 to this evidence, firstly, because I consider that Mr. Duplessis is an experienced and highly qualified longshoreman and, secondly, because I was shocked to hear Mr. Duplessis testify that he is required to place himself in harm’s way to put the cutting boards under rolling rolls of paper weighing approximately three tons while having to deal with a hard hat that impairs his ability to fully control the situation before him.
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In Juan Verville, supra, decision, Justice Gauthier wrote at paragraph 51:
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[99] It is the employer’s position that although there is a risk of injury in carrying out the above operations, that risk is under control. The control measures referred to by Mr. Proctor are the presence of a ship liner with chocks on him ready to intervene and, most importantly, having a planned escape route. Therefore, argued Mr. Proctor, the work carried out by Mr. Duplessis is a normal condition of employment which does not authorize him to refuse to work under the Code.
I disagree with that proposition as formulated.
[100] The notion of what constitutes a normal condition of employment has been examined by the Honourable Justice Gauthier in her Juan Verville, supra, decision. Justice Gauthier stated at paragraph 55:
[55] The customary meaning of the words in paragraph 128(2)(b) supports the view expressed in those decisions of the Board because “normal” refers to something regular, to a typical state or level of affairs, something that is not out of the ordinary. It would therefore be logical to exclude a level of risk that is not an essential characteristic but which depends on the method used to perform a job or an activity. In that sense and for example, would one say that it is a normal condition of employment for a security guard to transport money from a banking institution if changes were made so that this had to be done without a firearm, without a partner and in an unarmoured car?
(My emphasis)
[101] Having to stow rolls of paper in the hold of a ship that moves is a normal condition of employment.
Having to stow them by using the method of placing cutting boards under rolling paper rolls is certainly questionable11, as Mr. Duplessis must put himself in harm’s way to do this, although this is not the specific reason for which Mr. Duplessis has refused to work. However, having to stow the paper rolls as described above with a hard hat that interferes with his vision and mobility is definitely not a normal condition of employment.
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At the pre-hearing teleconference held to discuss issues relative to this case, the undersigned Appeals Officer was asked by Mr. Breen not to read the previous CLCAO decision 05-059, so as not to be influenced by it. Although I considered this to be an unusual request, I nevertheless acquiesced. I understand that in the previous hearing appeal to this case, the AO ordered that a risk assessment be carried out on the operation performed by Mr. Duplessis on the day of his refusal to work. I will deal with this important issue later. |
[102] Furthermore, once Mr. Proctor argues that
[79] …it is the employer’s position that when something under subsection 128(2) (b) of the Code is a normal condition of employment, there are no grounds for a refusal to work he is arguing that subsection 128(2)(b) of the Code applies. That provision reads:
128(2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if
(a) the refusal puts the life, health or safety of another person directly in danger; or
(b) the danger referred to in subsection (1) is a normal condition of employment[.]
(My underlining)
[103] Such an argument implies that danger, as defined in the Code, exists. In fact, Mr. Alport acknowledged, in commenting the serious accident that occurred to Laurie Garfield that, in rolling the roll into position,
…it basically got away from him, and that unfortunately is an inherent danger and is something we continually instruct our employees on vigilance. It pinned him between that roll and another roll.
(Emphasis added)
[104] Essentially, Mr. Alport is acknowledging that rolls of paper can and, given the right conditions, will get away from Mr. Duplessis. Although I do not believe that Mr. Alport was referring to a danger as defined in the Code, I believe however that he was referring to an inherent12 risk, meaning a risk “existing in something as a permanent characteristic or quality.” That recognition in itself requires the employer to put in place strict protective measures to mitigate the risk of injury because the possibility of injury is ever present.
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The New Lexicon Webster’s Encyclopedic Dictionary of the English Language, 1988 |
[105] Consequently, I need to ask myself whether the employer has taken the necessary protective measures to ensure the health and safety of Brian Duplessis. On the basis of the evidence submitted in this case, I do not believe that the employer ensures the health and safety of Mr. Duplessis while he is performing the operation of placing cutting boards under rolling rolls of paper. I have already explained above that “[h]aving an escape route would not be helpful to Mr. Duplessis when he is bending forward quickly to place the cutting boards. Also, although ship liners are present to secure the rolls of paper, there would be insufficient time to react and protect Mr. Duplessis while he is placing the cutting boards.”
[106] Furthermore, Mr. Duplessis testified that
[t]here is a greater risk of me getting jammed between the rolls because of being distracted by the hard hat falling off my head or moving because I was constantly bending over to place the cutting boards under the rolls and moving quickly to get out of the way in case the roll jumped as it did when Laurie Garfield got jammed not one month earlier.
(Emphasis added)
[107] I have also indicated above that “…Mr. Duplessis must remain focused in carrying out his job. Under these circumstances, he cannot allow himself to be distracted. The consequences of any distraction can be disastrous.” I am satisfied that the hard hat constitutes a serious distraction to Mr. Duplessis which threatens his health and safety while performing the above operation. I cannot imagine Mr. Duplessis having to jump in to place a cutting board under a rolling roll of paper and his hard hat slipping or falling off while he is doing this and consider this reasonable. It is little wonder that Mr. Duplessis did not want to wear a hard hat in those circumstances.
[108] Not only has the employer not met the requirement to protect the health and safety of Mr. Duplessis, but the employer directly contributes to Mr. Duplessis’ predicament by establishing unilaterally a mandatory policy for hard hat with disregard for the opinions of the members of the health and safety committee for the Port of Saint John, of Local 273 of the ILA, of other unions and of employers and employees on the port. All these persons, including senior officials on the Port of Saint John and of Forterm, acknowledge, through the risk assessment that wearing the hard hat constitutes a greater risk to those who work, as Mr. Duplessis does in the instant case, under the wings of the hatch, because of the general consensus that it impairs the vision. Also, the employer has ignored the legitimate complaint of Mr. Duplessis by brushing it aside as a refusal to comply with the company’s policy for hard hats. In the end, the employer did not conduct a proper investigation into Mr. Duplessis’ refusal to work at the time of his refusal, as he was required to do so under the Code, and, unfortunately, neither has the HSO.
[109] One should not infer from my comments respecting the risk assessment that I am endorsing this in-house risk analysis in general and its recommendation regarding the wearing of hard hats. I have insufficient evidence to do this at this time. I am simply acknowledging that the risk assessment recommends that hold men in general not wear the hard hat because it presents a greater risk due to vision. The term “hold men” is a general term that refers to different individuals working in the hold of the ship, including Mr. Duplessis who works under the wings of the hatch. The fact that Mr. Duplessis has a roof over his head to protect him from falling objects adds credibility to the risk assessment’s recommendation not the wear the hard hat because there is a greater risk of wearing the hard hat due to visibility. Furthermore, Mr. Duplessis has testified that he does not come out of under the wings of the hatch until he has finished stowing the rolls of paper and when he does, he wears his hard hat.
[110] It has been recognized by everyone at the hearing that some people working in the port are exempted from having to wear a hard hat because they are protected by the equipment they are using. For example, crane operators are deemed to be protected while working in the cabin of the crane because they have a roof over their head. The same applies to individuals moving equipment because they are covered by a cage. Mr. Duplessis argues that the same exemption should apply to him because when he is working under the wings of the hatch, he has a roof over his head and therefore, nothing can fall on his head as long as he remains under the wings of the hatch, which is exactly what he does. Given the evidence submitted in this case, I agree with Mr. Duplessis on this point. Contrary to the CLCAO decisions 03-013, 03-014 and 03-015 rendered by AO Michèle Beauchamp, where employees were exposed to overhead hazards while working on the docks, nothing inside and under the wings can fall on Mr. Duplessis’ head since there is no activity taking place directly over his head. There is only an eight to ten feet high roof over his head with light fixtures, and nothing else.
[111] The proposition that something such as a cable of a crane snapping and debris flying inside could injure Mr. Duplessis is not something that a hard hat was designed to protect against. A hard hat is intended to protect the head against falling objects. A hard hat could also protect the head against accidental bumping if the head could impact with a fix or moving object at the level of the head. These situations however do not exist under the wings of the hatch; at least I have no evidence to the contrary. Furthermore, assuming that such a hazard, i.e. debris from a cable breaking, could become a reality and possibly injure Mr. Duplessis, its occurrence is so remote that it does not take precedence over the risk that wearing the hard hat represents on an ongoing basis for Mr. Duplessis.
[112] I cannot accept that Mr. Duplessis must put his health and safety at risk to satisfy the employer’s policy which, it is argued, is in compliance with the law and constitutes the rule of the workplace. The law does not require anyone to work under conditions that can reasonably be expected to cause injury. In fact, the Regulations provide:
10.1 Where
(a) it is not reasonably practicable to eliminate or control a safety or health hazard in a work place within safe limits, and
(b) the use of protective equipment may prevent or reduce injury from that hazard,
every person granted access to the work place who is exposed to that hazard shall use the rotection equipment prescribed by this Part.
10.2 All protection equipment
(a) shall be designed to protect the person from the hazard for which it is provided; and
(b) shall not in itself create a hazard
[113] Consequently, for paragraphs 10.1(a) and (b) to apply, there must exist a hazard under the wings of the hatch that cannot be eliminated or controlled and that can cause injury to Mr. Duplessis’ head. However, in light of the evidence submitted above, the hazard is non-existent. Hence, these provisions find no application in the instant case. Also, according to paragraph 10.2(b), the hard hat that Mr. Duplessis is required to wear must not create a hazard in itself, which evidently it does given Brian Duplessis’ testimony and the reported consensus that it impairs his vision.
[114] Unless measures are taken to eliminate or control the only hazard or condition that exists for Mr. Duplessis, i.e. wearing a hard hat that impairs his vision and, necessarily, his mobility, there exists a reasonable expectation for Mr. Duplessis to be injured while placing cutting boards quickly and precisely to position moving rolls of paper under the wings of the hatch, before the hazard or condition is corrected or before the activity is altered. This can happen at any time that Mr. Duplessis places himself in harm’s way to quickly drop a cutting board under a moving roll of paper or even after he has accomplished this operation should a roll jump the cutting board. Having to deal with a hard hat that keeps falling off or slipping while performing the above operation is tantamount to an accident waiting to happen.
[115] Since the employer has a mandatory hard hat policy that requires all employees working in the hold to wear hard hats, a policy which is strictly enforced through disciplinary measures, there is a reasonable possibility that Mr. Duplessis will be injured in the future.
[116] Therefore, it is my decision that Mr. Duplessis was justified in refusing to work on February 01, 2005 because of danger.
[117] For these reasons, I rescind the decision of absence of danger that HSO Ian Rennie rendered to Mr. Brian Duplessis on February 01, 2005 and replace it with a decision of danger within the meaning of the Code.
[118] Furthermore, I am issuing to the employer the attached direction for danger under paragraph 145(2)(a) of the Code. I trust the HSO will ensure compliance with the direction.
[119] Also, in compliance with subsection 145(5) of the Code, the employer shall without delay cause a copy of this direction to be posted and give a copy of it to the policy committee, if one exists, and to the work place health and safety committee or the health and safety representative.
[120] However, given the passage of time and the absence of any similar vessel in the Port of Saint John, and given the existence of a risk assessment that had been ordered to be performed by the previous Appeals Officer in this case, I will not direct the employer to perform a new risk assessment for the operation performed by Mr. Duplessis. Rather, I am relying on the parties to review the existing risk assessment document with a view of ensuring the protection of Mr. Duplessis, or any other person, in carrying out the above described operation. The risk assessment should consider the method of placing the cutting boards under rolling rolls of paper which requires Mr. Duplessis to put himself in harm’s way to quickly drop the cutting boards under the rolls of paper. Also, the risk assessment should ensure the protection of Mr. Duplessis, or any other person, should a roll become out of control for any reason.
IN
THE MATTER OF THE
CANADA
LABOUR CODE
, PART II,
OCCUPATIONAL HEALTH AND SAFETY,
DIRECTION TO: Forest Products Terminal Corporation Ltd., Saint John , New Brunswick , E2M 4Y1 , UNDER PARAGRAPH 145(2) ( a )
The undersigned Appeals Officer conducted an inquiry pursuant to section 146.1 of the Canada Labour Code, Part II, into the circumstances of the decision of absence of danger rendered by health and safety officer Ian Rennie following his investigation of a refusal to work by Mr. Brian Duplessis, an employee of Forest Products Terminal Corporation Ltd., being an employer subject to the Canada Labour Code, Part II, while he was working on the vessel MV Reefer Prince in the Port of Saint John, N.B.
The undersigned Appeals Officer is of the opinion that the following situation constitutes a danger to an employee:
The wearing of a hard hat that impairs Mr. Brian Duplessis’ vision constitutes a danger, as defined in the Code, to Mr. Duplessis while performing the particular work of placing the cutting boards to position rolls of paper under the wings of the hatch of a vessel.
Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to immediately protect any person from the danger.
Issued in Ottawa, on September 26, 2007.
_________________
Serge Cadieux
Appeals Officer
Summary of Appeals Officer Decision
Decision: CAO-07-036
Appellant: Brian Duplessis
Respondent: Forrest Products Terminal Corporation Ltd.
| Provisions: |
Canada
Labour Code, 129(7), 122.1, 122.2, 124, 125, 128, 125(1)(z.03), 145.1(2), 122(1), Marine Occupational Health and Safety Regulations, 10.1 |
Keywords: Federal Court, decision of absence of danger, hard hat, cargo loading area, checkers, cutting board, direction.
Summary:
The present appeal is a result from the appeal of decision 05-059 at the Federal Court which referred the matter back for redetermination by a different Appeals Officer.
On February 1, 2005, the health and safety officer who investigated the refusal to work decided that a danger did not exist when wearing a hard hat in the cargo loading operation does not constitute a danger or a hazard to the employee.
Further to his analysis, the Appeal Officer rescinded the decision from the health and safety officer.
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