Executive Summary: Key Legal and Evidentiary Issues

• Judicial review centered on whether discipline for unsafe work refusal violated section 147 of the Canada Labour Code

• Employer claimed employee failed to cooperate with investigation; employee claimed protection under occupational health and safety provisions

• Canada Industrial Relations Board (CIRB) ruled discipline was a prohibited reprisal

• Board held that participation in an employer-led meeting or completing a form was not required under section 128

• Applicant employers challenged the reasonableness of the CIRB’s statutory interpretation and denial of oral hearing

• Court upheld the CIRB’s findings and dismissed the judicial review application with costs awarded to the respondents

Facts and outcome of the case

Background and workplace incident

Nenad Habus, a longshoreman and first aid attendant employed by Pacific Coast Terminals Co. (PCT), refused a work task in December 2022 that required him to operate a forklift. He asserted that doing so would remove him from proximity to the first aid station, compromising his regulatory obligations under occupational health and safety laws. His refusal triggered the statutory work refusal process under section 128 of the Canada Labour Code.

The following day, Habus declined to sign a government-issued "Refusal to Work Registration" form and did not attend a meeting proposed by the British Columbia Maritime Employers Association (BCMEA), which represents PCT. Shortly thereafter, PCT and BCMEA imposed discipline: a three-day suspension and a one-year ban from work dispatch at PCT.

Complaint before the CIRB

Habus and his union, the International Longshore and Warehouse Union, Local 500, filed a complaint with the Canada Industrial Relations Board (CIRB), alleging the discipline constituted an unlawful reprisal under section 147 of the Code. The CIRB agreed, finding that Habus had validly exercised his rights by orally reporting the unsafe work concern and that further participation in meetings or form completion was not legally required.

The CIRB concluded that the employer's disciplinary action was directly linked to Habus’s work refusal, which made it a prohibited reprisal. The Board rescinded the suspension, ordered compensation for lost wages, and reserved jurisdiction to assess any further damages related to the one-year dispatch suspension.

Judicial review application and court’s analysis

PCT and BCMEA sought judicial review of the CIRB decision at the Federal Court of Appeal, arguing that the Board misinterpreted sections 128 and 147.1 of the Code and failed to afford procedural fairness by refusing an oral hearing.

The court rejected these arguments. It found the CIRB's interpretation of section 128 reasonable, particularly in its conclusion that employees are not required to attend meetings or complete forms beyond promptly notifying their employer of unsafe work. The court also held that section 147.1 did not permit preemptive discipline during an ongoing investigation. Further, the court ruled that the CIRB acted within its discretion under section 16.1 of the Code by choosing to proceed without an oral hearing.

Disposition

The court dismissed the application for judicial review, upholding the CIRB's ruling. Costs were awarded to the respondents. The CIRB’s compensation order for lost wages and benefits remained intact, though the monetary value of the damages was not specified in this judgment.