Canadian Safety Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2014 News | June 2014 | CSR Top court overturns refusal of health and safety benefits to Quebec teacher Pregnant teacher's refusal to perform unsafe work didn't make her unable to work if alternate safe duties were available: Supreme Court BY JEFFREY R. SMITH A QUEBEC supply teacher is entitled to refuse work that puts her fetus at risk — and receive an alternative position or com- pensation in lieu, the Supreme Court of Canada has ruled. Quebec's health and safety legislation contains provisions for pregnant women where they can refuse to perform work un- der conditions that can present a risk to not only themselves, but also their unborn children. In such circumstances, they are entitled to be reassigned to a safer position or, if there's no al- ternative, they can stop working and receive income replacement benefits until the employer can reassign her or she delivers her baby — called preventive with- drawal. The benefits come from a fund into which all Quebec employers contribute. Under the legislation, a preg- nant worker refusing unsafe work must have her doctor complete a preventive with- drawal and reassignment cer- tificate which, once submitted, automatically constituted an application for reassignment to a risk-free task. Marilyne Dionne was a teach- er who was added to the supply teacher list for the Commission scolaire des Patriotes, a school board in Quebec, in early 2006. She was called to work frequent- ly by the school board, working almost full-time hours for the rest of the school year. In September 2006, Dionne informed the school board's call centre she was pregnant. On Oct. 5, her doctor told her she was vulnerable to a particular virus that could harm the fe- tus. The virus can be spread by groups of children, so the class- room environment posed a risk to Dionne and her unborn child. Her doctor completed a pre- ventive withdrawal and reas- signment certificate for this vi- rus, as well as another one that indicated the classroom also put her at risk for another virus. Di- onne presented the certificates to the Quebec occupational health and safety commission, who informed her if she received a contract, she would be eligible for preventive withdrawal and its associated benefits. Between Nov. 13 and Nov. 30, 2006, the school board's call cen- tre contacted Dionne 10 times to offer her supply teaching jobs. She accepted all of them and was not reassigned for any. On Nov. 27, the occupational health and safety commission informed Dionne she was en- titled to take preventive with- drawal because she had formed a contract with the school board on Nov. 13. The school board disagreed it had formed a con- tract and asked the commission to review this decision, but the commission confirmed it in De- cember. The school board appealed to the Commission des lesions professionnelles (CLP), which set aside the occupational health and safety commission's deci- sion. The CLP found preventive withdrawal was only available to "workers" as defined Quebec's occupational health and safety act, and Dionne's inability to go in the classroom because of health risks meant she was in- capable of performing the work required of her to fulfill the con- tract. Dionne wasn't a "worker" because she couldn't and didn't perform any work, said the CLP. After both the Quebec Supe- rior Court and Court of Appeal agreed with the CLP, Dionne ap- pealed to Canada's top court. The Supreme Court of Cana- da noted that Quebec's occupa- tional health and safety act was meant to protect workers from workplace dangers and give them the right to refuse work if they feel they would be exposed to danger. Additionally, when a worker exercises the right to re- fuse work, she is still considered to be at work under the act. "Any new assignments or temporary withdrawal from the workplace are deemed to be a substitute for the work that the employee would ordinarily be expected to perform but for the danger," said the court. "A refusal to perform unsafe work, there- fore, is not seen as a refusal to fulfill the employment contract, it is the exercise of legislated protection." The Supreme Court also not- ed the right to refuse to perform unsafe work was "automatically incorporated into the contract of employment," which includes safe working conditions. On top of this, the Quebec act also had specific safeguards for pregnant women, which allowed them to immediately withdraw from unsafe work if no reassign- ment was made, and to receive benefits while away from work. These were to ensure pregnant workers could continue working or not face penalties for avoiding unsafe work. Preventive with- drawal for pregnant workers should be treated like any other work refusal situation under the act, said the court. "By providing financial and job security to a worker whose workplace has become danger- ous because of her pregnancy, the act protects a pregnant worker from having to choose between her employment (and income) on the one hand, and her health or the health of her fetus on the other," said the Su- preme Court. The Supreme Court found the CLP's determination that Dionne did not form a contract of employment with the school board because her preventive withdrawal meant she could not work wasn't reasonable. Instead, the top court found preventive withdrawal "is not a failure or in- ability to perform the work, it is deemed by the statutory scheme to be a substitution of the work." Dionne was not refusing to work; she was refusing to per- form work that endangered her health. What prevented her from working was the school board's inability to provide a safe alterna- tive to the work, said the court. The Supreme Court found a contract was formed and Di- onne became a "worker" on Nov. 13, 2006, when Dionne ac- cepted the school board's offer to supply teach. She became eligible to exer- cise her right to refuse unsafe work, a right any other worker would have. Excluding Dionne pre-emptively would limit the health and safety act's defini- tion of a "worker" to someone who could perform work imme- diately without health or safety issues, which was against the purpose of the legislation, said the court. The Supreme Court allowed Dionne's appeal and overturned the earlier decisions. For more information see: • Dionne v. Quebec (C.L.P.), 2014 CarswellQue 3557 (S.C.C.). e Supreme Court of Canada said a "refusal to perform unsafe work… is not seen as a refusal to fulfi ll the employment contract, it is the exercise of legislated protection."

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