Danger from unstaffed control post not a normal condition of employment

Some level of danger is part of the job for correctional officers, but staffing control post full-time was a reasonable safety measure that should be made: Tribunal
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 12/11/2018

The risk correctional officers face at an Alberta correctional institution caused by a control post only being staffed for part of the day is not a normal condition of employment and warranted an officer’s work refusal, the Canada Occupational Health and Safety Tribunal has ruled.

The Edmonton Institution is a maximum security facility run by Correctional Service of Canada (CSC) in Edmonton. The property includes eight inmate living units and several courtyards around them, as well as an inner courtyard with entrances to the main building where the living units are housed. The inner courtyard has four doors accessing the living units and two doors accessing program and service areas, including the gymnasium. These doors are controlled by three armed control posts, two of which are elevated — EM-14 at the west end of the inner courtyard and EM-22 at the east end.

The facility has a main communication and control post that monitors all doors and the inner courtyard and co-ordinates the movement of inmates. Staff in the control posts monitor the inner courtyard and confirm when it is clear and when to release inmates.

Normally, all three control posts in the courtyard are manned when the gymnasium is in use — during weekday evening shifts and on weekends. However, normal practice for when the gymnasium isn’t being used — during the daytime on weekdays — post EM-14, which overlooks the gymnasium, is left unstaffed. In 2011, construction made certain areas unavailable for recreation, so the gymnasium was used in the daytime during the week and EM-14 was staffed. Once the construction was completed in 2012, the regular gymnasium schedule returned and EM-14 was left unstaffed during the day.

However, shortly after the regular recreation schedule resumed in 2012, an employee instigated a work refusal because EM-14 was unmanned during the day. While a joint hazard analysis was conducted and evaluated over three years, CSC kept EM-14 staffed. A health and safety officer completed the analysis on May 26, 2015, and determined EM-14 could be staffed only on evenings and weekends.

CSC informed its correctional officers that EM-14 would go back to evenings and weekends staffing only, and officer Sandra Courtepatte immediately filed a work refusal, claiming it created danger for employees. After a joint committee investigation failed to reach a conclusion, a delegate appointed by the Alberta Minister of Labour investigated.

Institution ordered to resume all-day staffing of control post

The ministry delegate found the lack of staffing of control post EM-14 during weekdays constituted a danger to employees at work, as it prevented a “rapid armed emergency response” to certain areas that were “blind spots” for other control posts due to overhangs in the inner courtyard. The delegate issued an order for CSC “to take measures to provide an equivalent level of protection to employees in all areas of the courtyard” — meaning it should continue to staff EM-14 continuously, as it had since 2011.

CSC appealed the order, arguing EM-14 had never been meant to provide an immediate armed response during movement of inmates in the courtyard, as evidenced by the staffing schedule before 2011. CSC also pointed out that no major assaults had ever taken place in the inner courtyard during the time EM-14 was empty, with the exception of one incident in early 2011 in which correctional officers rapidly gained control of the situation.

In addition, CSC said that the dangers identified by the ministry delegate were general and part of the normal condition of employment for correctional officers in a maximum security institution.

The tribunal noted that the Canada Labour Code defined “danger” as “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered” — Courtepatte’s work refusal was on the basis of her claim that there was a condition in the workplace that represented a danger under this definition.

The tribunal also noted that normal conditions of employment limited the personal right of employees to refuse dangerous work but employers had an obligation to prevent or reduce dangerous conditions as much as possible. Correctional officers in particular had a certain level of danger in their job description, which included “direct daily exposure to inmates who may be agitated, unpredictable or unco-operative or who may attempt to intimidate or resort to violence” and there was no real way to control the frequency or duration of difficult situations.

The condition causing Courtepatte’s work refusal was an increased risk of injury or death from the blind spots in parts of the inner courtyard when control post EM-14 wasn’t staffed, meaning those locations weren’t covered by an “immediate armed response.” The tribunal found that this hazard could indeed be expected to be a serious threat to Courtepatte’s life or health, and it could be corrected before the situation became a danger — both determinative elements on whether the condition could be considered to warrant a work refusal.

The tribunal also found that EM-14 was staffed when inmate and officer traffic was increased during recreational times, so it was seen as a necessary procedure to ensure safety — and the other control posts were staffed all of the time. When EM-14 wasn’t staffed, there wasn’t as much traffic, but there could be some during the day for various reasons. In addition, though CSC pointed out there had been no incidents except for one that was quickly taken care of, most of the previous few years had seen post EM-14 staffed at all times.

As a result, the tribunal found that while a certain level of danger was expected as part of the job for correctional officers, CSC didn’t take all reasonable steps “to eliminate, reduce, or control the hazard” Courtepatte and other correctional officers faced in the inner courtyard. Since all reasonable steps weren’t taken, the circumstances caused by the lack of staffing post EM-14 was not a normal condition of employment.

The tribunal upheld the ministry delegate’s order that CSC should staff control post EM-14 and rectify the situation prompting Courtepatte’s work refusal.

For more information see:

Correctional Service of Canada v. Courtepatte, 2018 CarswellNat 5771 (Can. OH&S Trib.).

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