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Work Refusal Process May not be Used to Challenge Employer’s Established Practices: OLRB

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In a long-running and bitterly-fought case involving prison guards, the Ontario Labour Relations Board has held that the work refusal process under the Occupational Health and Safety Act may not be used to challenge existing and established practices of the employer.

The case involved a staged work refusal by Correctional Officers and other prison employees after an unidentified person called the institution and said that a “zip gun” – a crude, home-made prison weapon – was in the institution.

The Institution’s Operational Manager decided that under the institution’s weapon search policy, the situation called for a “Level 2(b)” search of the institution; the employees demanded a “Level 4″ search which would involve cell extractions of prisoners by specially trained teams.

A Ministry of Labour inspector was called in. He decided that the employees did not have the right to refuse to work.  The employees nevertheless continued the work refusal.

The employees appealed the MOL inspector’s decision to the OLRB.  The OLRB agreed with the inspector: the employees had no right to refuse to work. The OLRB decided that the threat posed by zip guns was a normal part of the employee’s employment and was inherent in their work; therefore, under certain exceptions in the Occupational Health and Safety Act that apply to prison workers and other listed workers such as police officers whose work is inherently dangerous, the work refusal was not valid.

The OLRB went on to state that the OHSA’s work refusal provisions may not be used to call into question existing and established practices of an employer. Here, the application of the weapons search policy and the process through which the institution’s management decided which level of search to conduct, was part of the existing and established practices of the institution.  Therefore, the management decision of which level of search to apply may not be challenged through a work refusal.

The OLRB’s decision effectively means that where the employer has an established practice, the employees may challenge the safety of that practice by asking a Ministry of Labour inspector to order that the practice is not safe, but employees may not refuse to work in the interim.

Dowling v. Hamilton-Wentworth Detention Centre, 2012 CanLII 81181 (ON LRB)