Worker raised concern to co-worker; interpreted management's instruction as threat
A reminder to staff at a BC penitentiary that safety concerns should be brought directly to management was not a threat of discipline against a worker who had told another employee about a safety concern, the Federal Public Sector Labour Relations and Employment Board has ruled.
The worker was a correctional officer at the Kent Institution, a federal maximum-security penitentiary in Agassiz, BC. He worked with violent offenders, of which there were many at Kent, and knew that they could be unpredictable.
The worker was also an active member of the occupational safety and health (OSH) committee at the institution and had been since shortly after he started in 1999.
By 2018, employee morale at Kent was low and there wasn’t good communication between employees and management. Inmate assaults were increasing and correctional officers felt unsafe.
On May 31, 2018, the worker learned from an official of the Union of Safety and Justice Employees (USJE) that management was planning to start a new program in a space at the institution that had been allocated as a storage room. The room – which had previously been a space for an inmate employment program that had produced furniture – was filled with debris and old pieces of furniture-making equipment and the plan was to have inmates clean it up under supervision by correctional officers. According to the worker, it was a “scrap metal yard.”
The worker asked the officer in charge of the new program if he could tour the area, to which the officer agreed. He also asked a union representative to accompany him.
As they toured the area, the worker noted debris that inmates could easily make into dangerous weapons. He pointed these out to the program leader and said it was wrong to have inmates clean the area. The program leader agreed to talk to management and find another solution for cleanup. According to the worker, the tone of the tour was cordial and he believed he was doing his duty as an OSH committee member.
The union representative agreed that the area was dangerous, but she felt that the worker was calm and professional throughout the tour.
According to the warden, the program leader came to her upset and said he had felt intimidated by the worker and he believed that he had threatened work refusals if the cleanup work proceeded. Although she was concerned about intimidation situations at the institution, she felt that there was nothing she could do unless the program leader made a harassment complaint. However, she felt that all correctional officers should be reminded that safety concerns should be raised with management, not other employees.
The next day, June 1, the usual briefing was held at the start of the shift. However, the correctional manager giving the briefing said that upper management asked her to remind employees that they were not to alert other employees about potentially dangerous situations but rather were to speak to management directly.
This caused an uproar with the correctional officers and the worker asked if it was about him and his conversation with the program leader. Others said it was an unfair insinuation of intimidation against the worker. The manager explained that the Canada Labour Code requires safety concerns to be shared with management and there was a risk of appearing intimidating when speaking forcefully to another employee about possible work refusals.
On June 2, an OSH committee member emailed the deputy warden stating that using inmates to clean the program area created hazards and that the code required them to consult the OSH committee for proceeding.
On June 7, the OSH committee and union representatives toured the program area and identified several safety concerns. Management decided to have outside contractors do the cleanup.
The worker filed a complaint under the code alleging that management threatened him with discipline for intimidating the program leader, just for carrying out his duties as a member of the OSH committee, which the code prohibited.
The board noted that management was wrong to say that proper procedure was to warn management of a safety issue rather than a fellow employee. As a member of the OSH committee, the worker was entitled to speak out about potential dangers, said the board.
The board found that the worker was acting in accordance with the code as he was genuinely concerned about a dangerous situation. He thought that the most direct route to make management aware was to inform the program leader of his concerns, the board said.
However, the board also found that the worker was not disciplined or threatened in any way. There was no implication that the worker would be accused of intimidation; the worker himself raised this implication, the board said.
The worker was right to warn about the danger of having inmates clean up the program area and the employer was right to remind staff that such concerns should be expressed to management, as they must make decisions to address them, said the board.
The board determined that there was no evidence that the worker was disciplined for speaking to the program leader. At the shift briefing, management simply told the worker and other employees of the procedure to follow.
The board noted that management could have handled the matter better by speaking directly to the OSH committee about the safety issue instead of giving a message that vaguely implied there was intimidation, and the reaction to the message in the briefing was a result of the correctional officers’ sensitivity to possible harassment and intimidation accusations.
Unfortunately, the poor relations and communication between management and employees likely contributed to the matter being “a mountain made out of a molehill,” said the board, adding that management ended up heeding the OSH committee’s warning and did not involve inmates in the cleanup
The complaint was dismissed. See Sterkenburg v. Treasury Board (Correctional Service of Canada), 2023 FPSLREB 8.
