On March 3, 2010, the Federal Court quashed a Health and Safety Officer’s decision that a work refusal by flight attendants was based on a "normal condition of employment" and was therefore not subject to the right to refuse dangerous work in Part II of the Canada Labour Code (the "Code")  The flight attendants refused to work based on the report from their "in charge" flight attendant that the pilot had on an earlier flight threatened to "ditch" the plane and stated that he had "nothing to lose."  

The Health and Safety Officer’s decision followed a policy set in place by HRSDC in early 2007.  The policy required a Health and Safety Officer to "screen" work refusals to determine whether the danger alleged was a "normal condition of employment" before conducting an investigation.  Where, as in this case, the Health and Safety Officer finds that the circumstances of the work refusal constitute a "normal condition of employment," there is no investigation.

HRSDC’s "screening" policy deprives the refusing employee of rights set out in section 129 of the Canada Labour Code including the right to an investigation by a federal officer into whether or not there is danger; the right to the presence of employee representatives in that investigation and a right of appeal from the determination of the federal officer.  

James Robbins, representing the applicant CUPE, Air Canada Component, argued that Health and Safety Officers have no jurisdiction under the Code to make findings of "normal condition of employment" without following the procedural steps for the investigation of danger in s. 129.  The Federal Court agreed.  The effect of the Federal Court’s decision is that the "screening" policy, which both restricts the rights of employees and reduces the roles of federal officers charged with enforcing the health and safety provisions of the Code, is unlawful.  

A copy of the decision may be read here