Archived - Decision: 04-022 Canada Labour Code Part II
Occupational Health and Safety

This case was decided by Richard Lafrance, appeals officer.

[1]  This case concerns an appeal made on June 30th, 2002 by Mr. D.C. Noon-Ward, an employee of Correctional Service Canada, Mission Institution, B.C.

[2]  The appeal was made as a result of the finding of health and safety officer Lisa Mah, that no infractions had been found in the investigation conducted under subsection 127.1 of the Canada Labour Code (Code). The complaint read as follows:

"I am writing to appeal the decision of the "Labour Code 127.1(2) – Allergies to cats" by the Health and safety Officer "Lisa Mah" dated 10 June 2002 at Mission Medium Institution.

The Basis for my appeal is that I do not believe that the institutional investigation was completed in a fair and unbiased manner. I firmly believe that the management of this institution had no intention of conducting an investigation that would result in removing the source of the health hazard (CATS) which led to the complaint launched by the effected staff members. I believe that management and the management investigator misled Lisa Mah and did not provide her with all the pertinent facts that would enable her to make an informed decision. I also believe that Lisa Mah was misled into thinking that the recommendations contained in the Institutional Investigation Report would suffice to alleviate the hazard that is still present in our institution. I also believe that since this investigation was so poorly conducted that the HRDC decision-maker should conduct an independent investigation."

[3]  It appears that health and safety officer Lisa Mah was contacted to conduct an investigation in accordance with subsection 127.1(9) of the Code.

[4]  The powers and duties of the health and safety officer under subsection 127.1(10) are as follow:

(10)  On completion of the investigation, the health and safety officer

(a)  may issue directions to an employer or employee under subsection 145(1);

(b)  may, if in the officer's opinion it is appropriate, recommend that the employee and employer resolve the matter between themselves; or

(c)  shall, if the officer concludes that a danger exists as described in subsection 128(1), issue directions under subsection 145(2).

[5]  In her letter to Warden Brenda Marshal, health and safety officer Lisa Mah indicated that upon completion of her investigation, she did not find any contravention of Part II of the Canada Labour Code. Therefore, her involvement with this complaint was ended.

[6]  Despite what Mr. Noon-Ward may think, the decision of health and safety officer Lisa Mah, does not constitute a decision that can be appealed under subsection 129(7) or section 146(1) of the Canada Labour Code, Part II.

[7]  As specified in section 128 of the Code, a decision of no danger, which would give the right to appeal, can only exist after an employee has refused to work, which was not the case in this situation.

[8]  As well, as stipulated in subsection 129(4) of the Code, when a health and safety officer has rendered a decision concerning the absence of danger, in situations of work refusals, an employee or a person designated by the employee for the purpose, may appeal the decision as indicated in subsection 129(7) of the Code, which again, was not the case in this situation. These are the only type of decisions that can be appealed.

[9]  In short, an appeals officer only has the legal authority to intervene in a situation when the law authorizes him or her to do so: 146.1 (1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may…

[10]  As health and safety officer Mah in her intervention did not issue a direction or rendered a decision of no danger as there was no refusal to work situation, but only sent a letter signifying that no contravention existed, I find that I do not have the authority to receive such an appeal.

[11]  I conclude that I have no legal authority to hear this case. Therefore, I dismiss Mr. Noon-Ward's request for appeal. This file is now closed.

Summary of Decision

Decision No.:  04-022

Applicant:  D.C. Noon-ward

Employer:  Correctional Services Canada

Key Words:  Decision, direction, complaint

Summary:

The appeal was made as a result of the finding of occupational health and safety officer Lisa Mah that no infractions had been found in the investigation conducted under subsection 127.1 of the Canada Labour Code (Code).

The appeals officer concluded that he did not have the legal authority to hear the appeal and therefore dismissed it.