A female worker at Braemore Home Corporation — a care home for "mentally challenged adults" in Sydney, N.S. — refused to deliver juice and food supplements to clients, using a juice cart, after another worker was struck by one of the home's 113 clients when performing that task.
The Nova Scotia Labour Board decided she did not have reasonable grounds for engaging in the work refusal under the Nova Scotia Occupational Health and Safety Act.
The worker claimed she had a pre-existing medical condition that placed her at a higher risk of serious injury if she was to be struck in the face by one of the clients. She did not reveal the exact nature of the medical condition, but claimed she had it since childhood.
Management of the home had implemented a process for dealing with aggressive clients, including providing non-violent crisis intervention (NCVI) training to all direct-care staff.
The Nova Scotia Labour Board stated:
"(Employee’s) concern about working amongst clients is based upon her fear of being struck by a client. Her solution is to isolate herself from having contact with clients by working in the kitchen, and by avoiding clients by refusing to accompany the juice cart to the units where clients, including high risk clients, reside.
“The director testified that the right to refuse is based upon an average individual having reasonable grounds for refusing work. The act does not address fears. While every employee who testified admitted that there is an inherent risk in working at the Home, all have accepted this risk as part of the conditions of their employment.
“Most try to ameliorate the risk of possible aggression from clients by making themselves aware of which clients have a high risk to offend. Management has tried to reduce the risk of injury to kitchen helpers by introducing changes to the procedure for delivering juice and supplements to the units. With regard to the introduction of these changes, most of (the employee’s) co-workers were ambivalent about them. A poll conducted amongst the 10 affected employees by two members of the JOHS Committee found that nine felt safe with or without the new procedures being implemented.
“The board is convinced that (the employee’s) perception of the dangers imposed by having her accompany the juice run to the units is an emotional reaction and is not one that is based upon reasonable grounds."
This decision affirms that employees may not refuse to work based only on fear or a perception of danger, particularly where the fear relates to an "inherent risk" in the work. The fear must be based on reasonable grounds.
Adrian Miedema is a partner in the Toronto employment group of Fraser Milner Casgrain. He can be reached at (416) 863-4678 or Adrian.firstname.lastname@example.org.