Work refused based on employee’s condition

An employee’s right to refuse dangerous work includes work that is not inherently dangerous
|Canadian Employment Law Today

Western Grocers operated a distribution centre in Saskatoon where it employed approximately 250 workers. The United Food and Commercial Workers union (UFCW) represented its warehouse employees. The company set and monitored weekly performance standards for its warehouse employees through a time management system. Independent specialists developed the standards and the UFCW had its own specialists review the standards as well. The standards were enforced through a written policy of progressive discipline.

One of the Western Grocers employees was Ivan Stokalko who worked the afternoon shift in the warehouse assembling orders or operating a forklift. Mr. Stokalko had 15 years seniority as a bargaining unit employee.

On Feb. 10, 2000, Mr. Stokalko informed his supervisor that he was exercising his right to refuse unusually dangerous work on the grounds that, although he could and he was prepared to continue to lift boxes onto pallets, he could not do so at a rate that would meet the performance standards as he feared injury to his shoulder as a consequence of a previous injury. His supervisor and a manager informed Mr. Stokalko that the provisions of the Occupational Health and Safety Act did not cover his situation and that he should claim workers’ compensation. Mr. Stokalko again stated that he was prepared to work, just not at the pace required.