Worker claimed using forklift would take him far away from first aid room
The Federal Court of Appeal has upheld a decision of the Canada Industrial Relations Board (CIRB) granting an employee’s and his union’s complaint alleging that an employer’s disciplinary measures amounted to a reprisal against his refusal of unsafe work.
In Pacific Coast Terminals Co. v. Nenad Habus, 2025 FCA 152, the employee raised a safety issue regarding the location of two pallets of lubricants on Dec. 6, 2022.
The employee’s superiors ordered him to move the lubricants with a forklift. He declined, reasoning that using the forklift would take him too far away from the first aid room and prevent him from accessing first aid if needed.
The employer investigated the work refusal. The employee refrained from signing an Employment and Social Development Canada form to register the work refusal, which the employer provided, and attending a meeting with the employers’ association that represented the employer.
The employers’ association suspended the employee for three days and restricted him from dispatch to the employer for a year.
Before the CIRB, the employee and his union filed a complaint alleging that the disciplinary action was the employer’s reprisal against his refusal of unsafe work, in breach of s. 147 of the Canada Labour Code, 1985.
The CIRB granted the complaint. The CIRB agreed that the employer disciplined the employee due to his unsafe work refusal.
Citing part of Bérubé v. Canadian National, 1991 CarswellNat 1079, the CIRB determined that the employee did not need to fill out any form to initiate a work refusal and could instead orally communicate the substance of his concern, as the employee did in this case.
The employer and its association applied for the judicial review of the CIRB decision.
CIRB ruling upheld
The Federal Court of Appeal dismissed the application with costs.
First, the appeal court ruled that the CIRB decision was reasonable because it applied the relevant statutory provisions – ss. 128, 133, 147 and 147.1 of the Labour Code – and the pertinent court and CIRB decisions to the facts.
The appeal court rejected the applicants’ argument that the CIRB unreasonably interpreted s. 128. The appeal court said the CIRB reasonably interpreted the text of s. 128(12), considered the context and purpose of the s. 128 work refusal process, and issued justified, transparent, and intelligible reasons.
The appeal court found that the CIRB did not err in citing Bérubé and determining that the employee did not need to complete the form or attend the meeting.
The appeal court rejected the applicants’ argument that the CIRB interpreted s. 128 in a way that contradicted s. 126’s general requirements for an employee to follow prescribed procedures, comply with the employer’s instructions, and cooperate with anyone performing a duty concerning health and safety.
The appeal court noted that the applicants omitted s. 126 from their submissions to the CIRB.
Next, the appeal court disagreed with the applicants’ alternative argument that the CIRB unreasonably relied on s. 147.1, which allowed disciplinary measures if an employee wilfully abused the rights conferred by ss. 128 and 129 of the Labour Code.
The appeal court explained that the CIRB did not rely on s. 147.1 to determine that the applicants had to wait until the exhaustion of all investigations and appeals before disciplining the employee, regardless of the reason for the disciplinary action.
Instead, the appeal court said the CIRB found a clear and direct nexus between the work refusal and the disciplinary measures the applicants imposed on the employee, which would ordinarily lead to a s. 147 reprisal, then tackled whether s. 147.1 could nevertheless justify the discipline.
The appeal court rejected the applicants’ assertion that the CIRB’s reasoning would establish a statutory right to engage in misconduct until the completion of investigations into a work refusal and the relevant appeals.
Lastly, the appeal court saw no unfairness in the CIRB’s decision to proceed without an oral hearing.
