Investigation of a safety complaint is automatic
Lois Gillis was a teacher employed by the Annapolis Valley Regional School Board. In late 1999 Ms. Gillis began experiencing health problems which she attributed to her workplace, specifically to noxious fumes in the school. She left work several times in November 1999 as a result. She raised concerns with the school board’s joint occupational health and safety committee (JOHS committee) and with the Occupational Health and Safety Division of the Department of Labour (the “division”).
Under section 43(1) of the Nova Scotia Occupational Health and Safety Act, an employee has the right to refuse to work where the employee has reasonable grounds for believing that it is likely to endanger the employee’s health or safety. This right exists until the employer has taken remedial action or the JOHS committee has investigated the matter and unanimously advised the employee to return to work or the director or an officer in the division has investigated the matter and advised the employee to return to work.
On Dec. 15, 1999, Ms. Gillis left the school, claiming the right to refuse to work under section 43 of the Act. She reported her work refusal to her supervisor and the reasons for it. On Dec. 22, 1999, the JOHS committee met to discuss Ms. Gillis’ concern. The JOHS committee agreed that she could not safely return to work at the school and that there was no location in the school appropriate for her health and safety. The employer’s position was that its actions to date had remedied the situation, resulting in a deadlock between the parties.
Ms. Gillis contacted the division several times both before and after she exercised her right to refuse to work. In addition the JOHS committee, a representative of Ms. Gillis’ union and the director of human resources for the school board contacted the division about Ms. Gillis’ refusal.
The director of the Occupational Health and Safety Division took no action, taking the position that Ms. Gillis had never requested an investigation. In any event, such a request would be contingent on Ms. Gillis having been advised to return to work by the JOHS committee.
The employer appealed the division director’s decision to an appeal panel set up under the act. The appeal panel decided that the director not only had the authority but had the obligation to investigate the employee’s work refusal and issued an order accordingly. The division director appealed the decision and order of the appeal panel to the Nova Scotia Court of Appeal.
The issues on appeal were whether the division is required to respond to a request from an employer to investigate a workplace health and safety issue, and whether the JOHS committee of the school must unanimously advise the employee to return to work before the employee can report the work refusal to the division. The final issue was whether the employee in this case, Ms. Gillis, had made a report to the division.
On the first issue the appeal panel held that the Act does not empower an employer to report a refusal. The division is therefore under no obligation to respond to a request by an employer that an officer investigate the refusal and determine whether or not the workplace is safe.
On the second issue the appeal panel held that if the matter is not remedied to the employee’s satisfaction after complying with subsection 43(2)(a)(b), and the employee reports the refusal to the division pursuant to subsection 43(2)(c), the employee’s statutory right to have the refusal investigated by the division is automatic.
The appeal panel decided that although the Act contains no legal obligation for the director to comply with an employer’s request that the division investigate the work refusal, the appeal panel decided that the division had been duly notified by the employee in this case that the matter which caused her work refusal had not been remedied to her satisfaction. The appeal panel ordered the division director to investigate the matter and provide advice as to whether Ms. Gillis should return to work.
On appeal the division director challenged the findings of the appeal panel. The Court held that the appeal panel did have the power not only to review the decision of a division director but also to order the division director to take action in the event the appeal succeeded as it did in this case. The Court further agreed that there was sufficient evidence before the appeal panel to determine that Ms. Gillis had complied with the provisions of the Act with respect to reporting her refusal to work.
The appeal was dismissed.
For more information:
• Nova Scotia (Department of Environment and Labour) v. Nova Scotia (Occupational Health and Safety Appeal Panel), 2001 NSCA 162.
Under section 43(1) of the Nova Scotia Occupational Health and Safety Act, an employee has the right to refuse to work where the employee has reasonable grounds for believing that it is likely to endanger the employee’s health or safety. This right exists until the employer has taken remedial action or the JOHS committee has investigated the matter and unanimously advised the employee to return to work or the director or an officer in the division has investigated the matter and advised the employee to return to work.
On Dec. 15, 1999, Ms. Gillis left the school, claiming the right to refuse to work under section 43 of the Act. She reported her work refusal to her supervisor and the reasons for it. On Dec. 22, 1999, the JOHS committee met to discuss Ms. Gillis’ concern. The JOHS committee agreed that she could not safely return to work at the school and that there was no location in the school appropriate for her health and safety. The employer’s position was that its actions to date had remedied the situation, resulting in a deadlock between the parties.
Ms. Gillis contacted the division several times both before and after she exercised her right to refuse to work. In addition the JOHS committee, a representative of Ms. Gillis’ union and the director of human resources for the school board contacted the division about Ms. Gillis’ refusal.
The director of the Occupational Health and Safety Division took no action, taking the position that Ms. Gillis had never requested an investigation. In any event, such a request would be contingent on Ms. Gillis having been advised to return to work by the JOHS committee.
The employer appealed the division director’s decision to an appeal panel set up under the act. The appeal panel decided that the director not only had the authority but had the obligation to investigate the employee’s work refusal and issued an order accordingly. The division director appealed the decision and order of the appeal panel to the Nova Scotia Court of Appeal.
The issues on appeal were whether the division is required to respond to a request from an employer to investigate a workplace health and safety issue, and whether the JOHS committee of the school must unanimously advise the employee to return to work before the employee can report the work refusal to the division. The final issue was whether the employee in this case, Ms. Gillis, had made a report to the division.
On the first issue the appeal panel held that the Act does not empower an employer to report a refusal. The division is therefore under no obligation to respond to a request by an employer that an officer investigate the refusal and determine whether or not the workplace is safe.
On the second issue the appeal panel held that if the matter is not remedied to the employee’s satisfaction after complying with subsection 43(2)(a)(b), and the employee reports the refusal to the division pursuant to subsection 43(2)(c), the employee’s statutory right to have the refusal investigated by the division is automatic.
The appeal panel decided that although the Act contains no legal obligation for the director to comply with an employer’s request that the division investigate the work refusal, the appeal panel decided that the division had been duly notified by the employee in this case that the matter which caused her work refusal had not been remedied to her satisfaction. The appeal panel ordered the division director to investigate the matter and provide advice as to whether Ms. Gillis should return to work.
On appeal the division director challenged the findings of the appeal panel. The Court held that the appeal panel did have the power not only to review the decision of a division director but also to order the division director to take action in the event the appeal succeeded as it did in this case. The Court further agreed that there was sufficient evidence before the appeal panel to determine that Ms. Gillis had complied with the provisions of the Act with respect to reporting her refusal to work.
The appeal was dismissed.
For more information:
• Nova Scotia (Department of Environment and Labour) v. Nova Scotia (Occupational Health and Safety Appeal Panel), 2001 NSCA 162.
