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
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.
Dentons is a global firm driven to provide you with the
competitive edge in an increasingly complex and interconnected
marketplace. We were formed by the March 2013 combination of
international law firm Salans LLP, Canadian law firm Fraser Milner
Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly
regarded law firms. Each built its outstanding reputation and
valued clientele by responding to the local, regional and national
needs of a broad spectrum of clients of all sizes –
individuals; entrepreneurs; small businesses and start-ups; local,
regional and national governments and government agencies; and
mid-sized and larger private and public corporations, including
international and global entities.
Now clients benefit from more than 2,500 lawyers and
professionals in 79 locations in 52 countries across Africa, Asia
Pacific, Canada, Central Asia, Europe, the Middle East, Russia and
the CIS, the UK and the US who are committed to challenging the
status quo to offer creative, actionable business and legal
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).