Open to appeals officer to find level of participation and co-operation insufficient to satisfy duties under Canada Labour Code

OCCUPATIONAL HEALTH AND SAFETY

Open to appeals officer to find level of participation and co-operation insufficient to satisfy duties under Canada Labour Code

In 2004, respondent union became collective bargaining agent for applicant’s rural and suburban mail carriers. Shortly thereafter, complaints were made in respect of safety of delivery to rural mailboxes. In 2006, applicant engaged National Research Council to develop tool to assess safety of rural mailbox delivery and retained consultant to develop traffic safety assessment tool. Union was consulted in development of safety assessment tool. In September 2007, complaint was made to Human Resources and Skills Development Canada alleging that applicant had failed to include National Joint Health and Safety Committee, Local Joint Health and Safety Committee or Health and Safety Representatives in onsite traffic safety assessment tool inspection of rural mailboxes and did not provide National Joint Health and Safety Committee with complete information about safety assessments. Health and Safety Officer found that applicant had violated s. 125(1)(z.11) and s. 125(1)(z.19) of Canada Labour Code, but not ss. 137(e) or 136(5)(g). Union appealed. Appeals officer found that, in addition to directions issued by Health and Safety Officer, applicant had also violated ss. 135(7)(e) and 136(5)(g) of code by not permitting Local Joint Health and Safety Committee and Health and Safety Representatives to participate in assessments in accordance with their legal obligation to do so under code. Appeals officer concluded traffic safety assessment tool assessment was inspection and that it pertained to health and safety of employees within meaning of code. Applicant applied for judicial review of decision of appeals officer. Application dismissed. Physical presence of Local Joint Health and Safety Committee and Health and Safety Representatives was required in onsite investigation to allow those parties to fulfill their mandate as set out in ss. 135(7)(e) and 136(5)(g) of code. Appeals officer was person authorized to make finding as to meaning and requirements of “participate” on basis of evidence submitted. Appeals officer’s assessment of evidence was reasonable. It was open to him to find, based on totality of evidence before him, that level of participation and co-operation was not sufficient to satisfy duties under code.
Canada Post Corp. v. CUPW (May. 26, 2015, F.C., E. Heneghan J., File No. T-1498-13) 255 A.C.W.S. (3d) 111.