Archivée - Code canadien du travail Partie II Santé et Sécurité au travail

This case was decided by appeals officer Richard Lafrance.

For the applicants
Douglas Stewart Sanford, Union of Canadian Correctional Office

For the employer
Neil McGraw, Counsel for the respondent, Treasury Board, Legal Services

Health and Safety Officer
Jane Shimono, Labour Program, Human Resources and Skills Development, Toronto, ON, (No. GE5811).

[1] This case concerns an appeal made under subsection 129(7) of the Canada Labour Code (the Code), Part II on January 2nd, 2003 by Douglas Stewart Sanford on behalf of Norm Caron employed as a Correctional Officer by Correctional Services Canada (the employer).

[2] The appeal was made as a result of a decision of no danger rendered by health and safety officer (HSO) Jane Shimono, following an investigation of a refusal to work by Norm Caron.

[3] HSO Shimono submitted a copy of her report regarding her investigation of the refusal to work by Norm Caron employed as a correctional officer by Correctional Services Canada. I retain the following from her report dated December 16^th, 2002.

[4] On December 9, 2002, Norm Caron was assigned to escort three inmates, along with three other correctional officers, to the hospital in Campbellford.

[5] The statement of the refusal to work indicated the following:

"I am refusing to staff a security escort as I feel that danger exists when escorting inmates with Correctional Officers that are medically accommodated under WSIB¹. At time during the escort hand and leg restraints may be removed and I don't feel the accommodated officer could protect me at that point."

[6] As a result of his refusal, the employer looked for other volunteers to take his place and Mr. Caron was not required to conduct escort duty.

[7] The investigation revealed that the complainant specifically expressed concern that when an inmate's restraints are temporarily removed, he does not feel that the accommodated employee would be capable of protecting him.

[8] It further indicated that although it is normal procedures for two officers to watch one inmate who is not under restraint, Mr. Caron indicated two inmates could be without restraints at the same time, when, for example, they are x-rayed simultaneously. In this case, one officer would be assigned to each inmate. He also said that one officer could be left in charge of watching two unrestrained inmates, if i.e. one officer had to use the facilities.

[9] Similarly, he is fearful of working with an accommodated employee and restrained inmates, when they need to change a flat tire or when walking an inmate to court. He also worried the accommodated employee, himself, could be re-injured if he had to separate fighting.

[10] The employer did not believe that danger existed, and this is based on the following.

[11] The belief that there is a degree of inherent danger to employees engaged in escort duty, whether they are accommodated or not.

[12] There are no bona fide occupational requirements, with respect to the Correctional Officer positions, including for security escort duties.

[13] Usually, when there are reasons to believe there is an elevated risk, additional officers are added to the escort assignment. In this case, t was not felt that there was any greater risk than usual and therefore, no extra officers where assigned to the escort duty.

[14] Additional facts that I retained from HSO Shimono' s report are :

• The employee (Norm Caron) was assigned, along with three other correctional officers, to escort three inmates to the hospital.

• The inmates were transported in a van, with two inmates per separated sections in the van.

• Personal restraints where to be worn by the inmates (leg irons and handcuffs secured to the front of the body).

• The restraints could be temporarily removed when required (i.e. when being treated in the hospital).

[15] Other facts gathered by HSO Shimono:

• The complainant has been a correctional officer for 4.5 years and has engaged in escort duties on 35 to 40 occasions.

• None of those have resulted in his need to physically intervene.

• He has not witnessed other officers physically intervening with inmates during escorts.

[16] Procedures are in place to ensure that there is one more officer than inmates on any of these escorts.

[17] Officers receive "core training" prior to beginning work at the correctional facility. This includes training on the Situation Management Model, which teaches the appropriate methods of assessment of and response to inmate behavior (i.e. negotiation, verbal orders, physical handling etc.). They also receive on-the-job training with respect to conducting escorts.

[18] Accommodated employees conducted security escorts for the last 1.5 years. Although the employer states that accommodated employees' functional abilities are reviewed every six months, no job hazard or physical demands analysis had ever been conducted for this particular job.

[19] Finally, it is noted in HSO Shimono's report that the complainant claimed that working with accommodated escort employees has always been a concern which was always supposed to be reviewed by the Warden. However, this never occurred.

[20] After many requests, I finally received a letter of contention from the applicant. The only argument raised by the applicant's representative, Doug Sanford, is that the Health and Safety Officers report is incorrect, in stating that "Based on reports by the employer and employee representative, it is clear that physical intervention during escorts is a rare occurrence".

[21] According to a written submission from Mr. Sanford, this is incorrect and he asked HSO Shimono to remove this from the report. According to him, he never commented anything to that effect. Still, according to Mr. Sanford, in a later interaction with the health and safety officer she offered to provide a letter to state that she did not, in fact, receive that type of information. The said letter was never delivered.

[22] In the conclusion of Mr. Sanford's submission he requested that because the health and safety officer's report was incorrect on that particular point, I should declare the whole report nugatory and of no force or effect.

[23] The employer was given 10 days to serve and file written representation in response to Mr. Sanford's letter. To date, none have been received. My decision will then be based on the documentation on file.

[24] The issue to decide is whether or not the employee was in a situation of danger while he was to escort inmates with three other Correctional Officers, because one of them was medically accommodated under the WSIB.

[25] As I mentioned in paragraph 20, 21, 22 and 23, I received only one submission from the affected parties and that is from Mr. Sanford, the employee representative.

[26] The only contention that was raised by Mr. Sanford is about a statement contained in the health and safety officer's report, about the rarity of physical intervention during escorts. While the number of past hazardous occurrences may have some impact on my decision, I do not believe that they carry much weight when it's time to render a decision. I must look more at the future and the potential hazard or condition or future activities that can constitute a danger as indicated in Part II of the Code.

[27] As mentioned in paragraph 24, the issue to be resolved with regard to the work refusal is whether or not the fact of being accompanied by an accommodated employee placed Mr. Caron in a situation of danger. Unfortunately, I was not given any real evidence by anyone, for or against the (functional) physical capabilities of the accommodated employee, which could be the source of the danger, felt by the refusing employee Mr. Norm Caron.

[28] The health and safety officer's report contains a description of the work to be done when accompanying inmates as well as the procedures in place to escort the inmates. No one contested this.

[29] It is also mentioned in the report that the usage of accommodated employees to escort inmates to the hospital has always been a concern to the employees. If this is the case, it should have been brought up earlier to the attention of the employer and the health and safety committee to be resolved. The use of the right to refuse to work provision to settle labour disagreements is certainly not the way to resolve those issues.

[30] To put it briefly, unless the applicant can demonstrate that a specific 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 exists, I cannot make a decision to rescind a decision of no danger rendered by the health and safety officer.

[31] Therefore, for the reasons stated above, I confirm the decision of no danger rendered by health and safety officer Shimono.

_______________________
Richard Lafrance
Appeals Officer

Summary of Decision