An employee who shut down a production line allegedly because two other employees were fighting, was not exercising a proper work refusal under the Occupational Health and Safety Act, the Ontario Labour Relations Board has decided. His poor workmanship was also deliberate.
The employee pushed an "E-stop" button, and said he did so because he saw two coworkers fighting. He said that he saw punches thrown and a headlock. He said that he pushed the E-stop button out of concern for one of the two employees' safety. He did not show up at a meeting the next day to discuss the incident. The employer then dismissed him.
The OLRB noted that under the OHSA, an employee may refuse to work due to workplace violence only when his or her own safety is at risk due to the violence – not the safety of a coworker. Here, the employee said that he was concerned about his coworker's safety, not his own. Also, the OLRB held that the two employees were not, in fact, fighting, but rather they were engaged in horseplay. The employee could not have believed that their safety was in jeopardy.
The OLRB stated, "In light of the foregoing, I find that Mr. McNerney was angry with Ms. Campbell and he decided to be difficult by producing defective products and unnecessarily pushing the E-stop button. Given how unusual it was for an employee to produce so many defective seats during a shift, I find it more likely than not that Mr. McNerney's poor workmanship was deliberate." The employee had no honest and good faith believe that a health and safety issue had arisen requiring him to push the E-stop button.
As such, the OLRB held that the employee had not been dismissed for raising safety issues. There was no violation of the OHSA.
McNerney v Integram Windsor Seating, 2015 CanLII 67646 (ON LRB)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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