In this case, the Commission des normes, de l’équité, de la santé et de la sécurité au travail (CNESST) was seized of a complaint filed by the worker under section 227 of the Act respecting occupational health and safety (AOHS), who alleged that he had been penalized, i.e., dismissed, for exercising a right of refusal due to the risks of contracting Covid-19. The CNESST declared this complaint inadmissible and unfounded.
The Facts
The plaintiff was hired by the employer on April 7, 2020, as a production clerk in the preparation and assembly of meal boxes to be delivered to customers. Given the Covid-19 pandemic and the related health situation, every employee is required to wear protective equipment, including a three-ply mask, a visor, gloves, a lab coat, hair and beard net when necessary, all of which are provided by the employer. In addition, the employer requires all employees to have their body temperature taken upon arrival at work every day.
On April 15, 2020, during his first assignment to assemble the boxes in the refrigerator, the plaintiff claims feeling unsafe due to the possibility of catching Covid-19, despite the sanitary measures in place. More specifically, he alleges that the required distance of two metres between employees is not always respected, that some employees remove their masks when they become wet, and that the visors fog up due to condensation. At his request, the plaintiff is assigned to another team.
The plaintiff is actually dismissed the same day, for various reasons, namely: production line breakage, insolent attitude and frequent delays.
The next day, the plaintiff files a complaint under section 227 of the AOHS, claiming to have been dismissed following the exercise of his right to refuse work under the AOHS.
The Decision
In its decision, the CNESST first recalls the conditions that must be met in order to exercise a right of refusal under the AOHS, namely:
- be a worker within the meaning of the AOHS;
- to have to perform work at the employer’s request;
- to apprehend a danger to oneself or to others resulting from the performance of that work;
- to base this apprehension on reasonable grounds;
- to exercise this right of refusal with respect to work that is performed under abnormal conditions or circumstances;
- to be able to refuse to perform the work requested without putting the safety of others in immediate jeopardy;
- to report the right to refuse to an employer’s representative as soon as possible.
From these criteria, the CNESST concludes that the plaintiff was a worker within the meaning of the AOHS, that he was performing his duties at the request of his employer, that he feared a danger of contamination with Covid-19 and that his request to be assigned to another position did not put the safety of others in immediate danger. It concludes, however, that the plaintiff had not met his burden with respect to the other criteria.
First, analyzing the situation in terms of the apprehension that a reasonable person would have under the same circumstances, the CNESST finds that the plaintiff has not demonstrated that his apprehensions were based on reasonable grounds. Indeed, the plaintiff was informed of the sanitary measures put in place by the employer to prevent contamination and ensure the safety of the workers. These measures included the taking of body temperature, in addition to the personal protective equipment (PPE) provided by the employer, which could be changed as needed. These measures were considered sufficient by the CNESST in the circumstances.
On the other hand, the CNESST contends that the plaintiff failed to demonstrate that his right to refuse a job is the result of abnormal conditions. The Covid-19 pandemic has affected all aspects of life, whether at work or in one’s personal life. Thus, the working conditions or circumstances of performance were not abnormal under the circumstances, especially since the employer had adopted adequate preventive health measures recommended by the Public Health Department.
The CNESST therefore determines that the complaint is unfounded and inadmissible, since the plaintiff had not exercised his right of refusal according to the criteria of the AOHS.
Laine v. Recettes Cook it inc., 2020 QCCNESST 203
