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Canada Labour Code Investigation Required into Refusal to Work by Cabin Crew Due to Alleged Pilot Instability
Published in the March 2010 issue of Transportation Notes - View Article
In August 2008, several Air Canada cabin personnel who were scheduled to operate a flight exercised their right to refuse to work under Part II of the Canada Labour Code (the Code).
The crew had concerns about the pilot’s mental state. It was alleged that on an earlier flight, the pilot had indicated that he was going to “ditch” the plane and that he had “nothing to lose” as he was felt he was going to be terminated.
Following this incident, the Health and Safety Officer (“HSO”) from the appropriate government agency attended at the airport to proceed with an on-site assessment of the matter. During the on-site assessment, the HSO interviewed flight attendants, representatives, managers, people who knew the captain (including the operations manager) and the in-charge flight attendant who had been the most vocal about not working with the captain. The HSO found that, aside from the flight attendants in question, no one commented negatively about the captain and generally expressed confidence in his ability to carry out his job.
As a result, the HSO released a Preliminary Inquiry Report and a decision that concluded that the circumstances on which the refusal to work was based constituted a “normal working condition” of employment within the meaning of subsection 128(2) of the Code and that there would be no investigation under section 129 into whether or not a danger existed. More specifically, the HSO found that the refusal to work was based on a “conflict between captain and chief steward”.
The union filed an application for judicial review of the HSO decision. The main issue in dispute was whether a Health and Safety Officer can conclude, without an investigation under section 129 of the Code, that the circumstances of a work refusal constitute a normal condition of employment.
Subsection 128(1) of the Code sets out the conditions under which an employee has the right to refuse to a job including when a situation exists in the workplace that constitutes a danger to the employee, or when performance of an activity constitutes a danger to the employee.
Subsection 128(2) provides two instances where employees do not have the right to refuse to work, being when the danger referred to in subsection 128(1) is a “normal condition of employment”. The remainder of section 128 sets out the procedure the employer and employee must follow, up to and including the contacting of an HSO under subsection 128(13).
Subsection 129(1) provides that upon being notified that an employee continues to refuse to work, the HSO “shall without delay” investigate the matter.
Section 141 grants the HSO broad powers including the power to conduct an inquiry at any time and to conduct preliminary inquiries.
The union argued that a determination of danger must occur before the HSO can conclude upon a normal condition of employment.
Air Canada argued against this on the basis that paragraph 128(2)(b) does not read “an employee may refuse to work if the danger is a normal condition of employment”. Rather, it states that an employee may not refuse if “the danger referred to in subsection (1) is a normal condition of employment”.
“It is submitted that a problem with the applicant’s interpretation is that an HSO may at times be required to launch into a futile investigation even when the work refusal was not permitted by subsection 128(2), and when the HSO’s better judgment advises against the need for such an investigation. Despite this problem, I agree that section 129 simply does not permit an HSO to engage in a preliminary enquiry upon being called to the workplace of an employee who continues to refuse to work and allege a danger under subsection 128(13).”
Air Canada argued that an investigation under section 129 is only warranted when all of the preconditions which grant the employee the right to refuse work have been satisfied. When an exception has been met under subsection 128(2) (i.e. normal condition), no work refusal exists under s. 128(1) and employees cannot refuse to work and cannot require an HSO to conduct an investigation.
Air Canada further submitted that the union’s interpretation may result in the HSO launching into a futile investigation even when the work refusal was not permitted by subsection 128(2) and when the HSO’s better judgment advises against the need for such an investigation.
Given that the main issue in dispute involved a question of jurisdiction (i.e. whether the HSO has the statutory authority to make the decision she did), the decision attracted a standard of review of correctness.
“In the end, I find that the Code does not give an HSO the jurisdiction to conduct a preliminary enquiry, or to make any determination under section 128(2), upon being called to a workplace under subsection 128(13).”
The reviewing judge held that section 129 does not permit an HSO to engage in a preliminary inquiry upon being called to the workplace of an employee who continues to refuse to work and allege a danger. Although HSOs have broad powers of investigation under section 141, this cannot override the clear language of section 129.
The judge recognized that the finding in this case leaves the exceptions under subsection 128(2) in a precarious position because although either exception “clearly invalidates” a refusal to work, the Code is silent as to how and when a subsection 128(2) determination can first be made. The judge held that such a deficiency can only be resolved by Parliament.
In light of the finding that the HSO must conduct an investigation, the judge further held that it was not necessary to consider whether the HSO had in fact committed a reviewable error in finding that the circumstances of the cabin crew’s work refusal constituted a “normal condition of employment”.
CUPE, Air Canada Component and Air Canada, 2010 FC 245.