Harassed Employee’s Work Refusal Illegal: Court

by Dentons
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An employee did not have a right under occupational health and safety legislation to refuse work due to harassment, a Nunavut judge has held.

The employee, a wildlife biologist with the Government of Nunavut, refused to work due to harassment.  She filed a work refusal complaint with a government safety officer.  Under the Safety Act, an employee could refuse to work due to an “unusual danger” in the workplace.  The safety officer decided that the employee had been subject to harassment and that the harassment constituted an “unusual danger” so that the work refusal was justified.

The court disagreed, and overturned the safety officer’s decision.

The court noted that unlike other provinces’ workplace safety laws, Nunavut’s Safety Act is silent on the issues of workplace violence and harassment.  In Nunavut, a safety officer could not issue an order to stop harassment, and the legislation did not otherwise protect employees from harassment.  As such, if the Safety Act were interpreted to permit work refusals due to harassment, employees subject to harassment would have no other remedy under that Act except the most drastic response – refusing to work.  That did not make sense.

The court noted that in Ontario, the Occupational Health and Safety Act permits employees to refuse to work due to workplace violence but not workplace harassment – a policy choice that the Ontario government made.

The court concluded:

“Clearly the attitude to workplace harassment has changed over the years and there is now a recognition that there can be ill effects on both mental and physical wellbeing as a result of harassment. There are many arguments to support the inclusion of provisions regarding workplace violence and harassment in occupational health and safety legislation and other workplace related legislation. Ultimately, however, it is for the Legislature to decide whether or not to address these issues and, if so, how to best go about doing so.”

This case illustrates that whether harassment is a “safety” issue under workplace safety laws, depends on the wording of the statute in question.  It is not true, as a general proposition, that harassment is a safety issue.

Nunavut (Minister of the Environment) v. WSCC, 2013 NUCJ 11 (CanLII)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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