“Unsafe” Coworker Did not Justify Work Refusal under OHSA: Ontario Arbitrator

An Ontario arbitrator has held that a worker was not justified in refusing to work because it was allegedly unsafe to work with his coworker, a lead hand.

The grievor, a saw operator, refused to work with the lead hand on a band saw, a two-person job.  The grievor alleged that the lead hand was unsafe because he had “aggressively grabbed” a casting and pulled it towards the saw on one occasion when the grievor had started to work on the band saw on his own.  The grievor took it upon himself to instead work alone on a saws-all.

The company suggested a number of options for the grievor, including working in another position on the band saw or working with another employee on the band saw, but the grievor refused, saying he did not consider the other employee safe as he lacked sufficient training.  The grievor instead continued to work alone on the saws-all.  The company eventually fired the grievor for insubordination due to his refusal to work on the band saw with the lead hand

The arbitrator decided that the grievor did not have a reasonable belief nor reasonable grounds to believe that working with the lead hand on the band saw was a danger to him.  Therefore, the grievor’s work refusal was not justified under the Ontario Occupational Health and Safety Act.  Although the lead hand’s attitude may have been somewhat aggressive, it was in part explained by the fact that the grievor had gone ahead to do, by himself, what was a two-person job on the band saw.

The arbitrator noted that where, for example, a “deranged person” in the workplace was threatening others or causing harm, a work refusal might be justified under the OHSA. That was not the case here, though.

Lastly, the arbitrator held that the grievor’s persistent refusal to work with the lead hand “for the flimsy reasons he gave” constituted a persistent act of insubordination, and justified discipline but not termination. The arbitrator reinstated the grievor without compensation for lost wages subject to him accepting a one-year “last chance agreement” which provided that if the grievor engaged in any type of horseplay, harassment, disruptive behavior or disrespectful behavior towards other workers, his employment would be terminated.

Haley Industries Ltd. v. U.S.W., Local 4820, 2012 CarswellOnt 3332.

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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