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Possible terrorism held not to be a workplace risk

In an important decision under Part II of the Canada Labour Code (the Code), a Federal Appeals Officer has ruled that the risk of terrorism does not warrant an employee's refusal to perform work.

The case, Abood v. Air Canada, involved airline flight crew members who refused to work on a September 14, 2001 flight bound from Toronto to Tel Aviv, Israel. Abood and the other employees contended that the prospect of terrorist attack at the airport and hotel in Israel made them vulnerable to hazard. The employees invoked their rights under section 128 of the Code to refuse work they believed constituted a "danger." The employer disagreed, a view which was endorsed by the subsequent investigation of a Ministry of Labour Safety Officer. The employees appealed and the case was heard under s.146 of the Code by an Appeals Officer.

The issue in the case was whether a "danger" under the Code could include the risk of terrorism in Israel, where at that time (and since) the civil population has been subject to terrorist assault. The case arose just after the September 11 attacks on the United States, when the fear of terrorism was particularly intense. The appellant employees asserted that conditions in Israel in September 2001 constituted a "danger" under section 122.1 of the Code, which was amended in 1998 to include "any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it."

The Appeals Officer, in upholding the Safety Officer's ruling and rejecting the employees' appeal, adopted a test of prospective danger which elevates the necessary probability of the hazard, the exposure and the harm to a high level of likelihood. To merit the protection of the Code, an employee may refuse a "danger" where the facts show:

• the future work activity will take place;
• the work activity includes a hazard that will come into being;
• an employee will be exposed to that work activity;
• the hazard will cause injury or illness to the employee exposed thereto;
• the harm will be immediate (except in proven long-latency cases).

Concluding that there was insufficient evidence of probable terror attack during the flight crews' work assignments, the Appeals Officer found that not even a prospective danger existed to warrant the work refusal.

In Our View

By inserting the word "will" into the five-part test applied here, the Appeals Officer adopted a higher level of probability required to constitute a "danger" under the Code. Such a degree of probability of "potential" dangers in work refusal disputes will generally favour employers, who cannot always foresee or control the galaxy of risks remotely attendant to work activity. The legal issue, which may well be subject to further judicial review, is whether a hazard must be "likely" in order to be a "potential" risk to employees.

For further information on this topic please contact George Rontiris at (613) 940-2732.