Occupational Health and Safety Tribunal Canada

Case No.: 2006-04

Decision No.: CAO-07-009

 

 

 

CANADA LABOUR CODE

PART II

OCCUPATIONAL HEALTH AND SAFETY

 

 

 

Tara Harkin et al and the Canadian Union of Public Employees, Air Canada Component

appellant

 

 

and

 

 

Air Canada

respondent

 

 

________________________

Decision No.: CAO-07-009

March 22, 2007

 

 

 

This case was decided by Appeals Officer Richard Lafrance.

 

For the appellants

James Robbins, Counsel for Canadian Union of Public Employees, Air Canada Component (CUPE)

For the respondent

Christianna Scott, Counsel, Labour & Employment Law, Air Canada

 

Health and Safety Officer

Lisa Witton, Health and Safety Officer, Transport Canada

• [1] This case concerns an appeal pursuant to subsection 129(7) of the Canada Labour Code, Part II, (the Code) made by Air Canada employees Curtis Betts, Cynthia Saulnier and Karen Pammer represented by the Canadian Union of Public Employees, Air Canada Component against a decision of absence of danger rendered on January 20, 2006, by Health and Safety Officer (HSO) Lisa Witton, pursuant to subsection 129(4) of the Code.

 

• [2] The circumstances giving rise to the HSO’s decision and to the subsequent appeal, relate to a work refusal initiated by the three Air Canada flight attendants on December 22, 2005, who were of the opinion that they were too tired to carry on with their duties on board a continuing flight to LaGuardia airport because they believed that they had not gotten the complete rest period provided pursuant to their collective agreement.

 

• [3] They were of the opinion that it would be dangerous to work the remainder of their scheduled pairing after having had less than the minimum crew rest period. Because of delays in their flight the previous day, they figured that they had enjoyed approximately 9 hour 23 minutes of rest instead of the ten hours as per their collective agreement, in other words a differential of 37 minutes.Consequently, they requested to be relieved of duties from the continuing flight.When this was refused they asked to be put on sick leave. As the employer refused to agree to their request, they exercised their right to refuse to do dangerous work, because of fatigue.

 

• [4] After multiple attempts by Air Canada to reach a health and safety officer at Transport Canada and the Labour Program of Human Resources and Social Development Canada (HRSDC), health and safety officer Witton, from Transport Canada, finally undertook, thirteen days later, an investigation on the continued work refusal on January 04, 2006 and provided her report and decision on January 20, 2006, almost one month after the date on which the appellants exercised their statutory right to refuse to work.

 

• [5] Even though written arguments on the merits of the case were provided to the Appeals Officer, a hearing was scheduled for February 12 to 15, 2007 to clarify certain issues with the appeal.

• [6] On January 12, 2007 , more than one year after the actual refusal, James Robbins, counsel for CUPE wrote to this Office to indicate that the parties had reached an agreement and provided the Minutes of Settlement, signed by representatives of both parties.The parties requested that the terms of the Minutes should be incorporated into a consent decision and order issued by an Appeals Officer.

 

• [7] The Minutes of Settlement acknowledge that the crew of flight AC722 and AC 727 exercised their right to refuse work pursuant to section 128 of the Code and that they were released no later than 20:00 hours on December 22, 2005.The Minutes further state that no investigation by a health and safety officer had commenced by 20:00 hours on December 22, 2005 and that Health and Safety Officer Lisa Witton issued a “no danger” decision on January 20, 2006 .

 

• [8] In the Minutes of Settlement, the parties agree that the HSO’s decision of January 20, 2006, “shall be” rescinded and that there “shall be” no finding with respect to the presence or absence of “danger” within the meaning of Part II of the Code pertaining to the December 22, 2005, work refusal.

 

• [9] I find that the parties’ agreement as outlined in the Minutes of Settlement of January 12, 2007, constitute a satisfactory conclusion to this case for the parties.I note that they have agreed to certain relevant facts and, by implication, have jointly decided not to pursue other factual matters that had been the subject of differences between them.While as an Appeals Officer, I am not bound by the settlement arrived to by the parties, I agree that no useful purpose will be served by my making a finding with respect to the presence or absence of “danger” within the meaning of Part II of the Code pertaining to the December 22, 2005, work refusals.

 

• [10] I therefore agree to the parties’ joint request that the Minutes of Settlement be incorporated into a consent decision and I have attached the agreed text of those Minutes which are to be included as an integral part of my decision and order.My decision pursuant to section 146.1(a) of the Code is to rescind the decision issued by Health and Safety Officer Witton on January 20, 2006 .

 

 

 

 

 

_______________________________

Richard Lafrance

Appeals Officer

SUMMARY OF APPEALS OFFICER DECISION

 

 

Decision CAO-07-009

 

Appellant Tara Harkin et al and the Canadian Union of Public Employees, Air Canada Component

 

Respondent Air Canada

 

Provisions

 

Canada Labour Code 129(7), 129(4), 128

Keywords Decision of absence of danger, complete rest period, collective agreement, minutes of settlement, rescind.

 

SUMMARY

 

On January 20, 2006 , three Air Canada flight attendants refused to work because they were of the opinion that they were too tired to carry on with their duties because they believed that they had not gotten the complete rest period provided pursuant to their collective agreement. On January 12, 2007 , counsel for CUPE wrote to this Office to indicate that the parties had reached an agreement and provided the Minutes of Settlement. The Appeals Officers rescinded the decision from HSO Witton.