Tuesday, 15 February 2011 18:04

Individual Disputes over Health and Safety Issues

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Types of Disputes

An individual dispute arises from a disagreement between an individual worker and his or her employer over an aspect of their employment relationship. An individual dispute exemplifies a “rights dispute”, that is a dispute over the application of the terms of legislation or an existing agreement, whether a collective bargaining agreement or an individual written or oral contract of employment. Thus there could be a dispute over the amount of wages paid or their manner of payment, work schedules, working conditions, entitlement to leave and so forth. In the field of health and safety an individual dispute may arise in relation to the use of personal protective equipment, extra payments for carrying out dangerous work (hazard pay – a practice now frowned upon in favour of eliminating hazards), refusal to perform work that poses an imminent danger and observance of health and safety rules.

An individual dispute may be initiated by a worker complaining to vindicate what he or she believes to be a right, or reacting to employer-imposed disciplinary action or dismissal. If a dispute involves similar claims on behalf of individual workers, or if an individual dispute raises a point of important principle for a trade union, an individual dispute can also lead to collective action and, where new rights are then sought, to an interests dispute. For instance, a single worker who refuses to perform work that he or she thinks is too hazardous may be disciplined or even dismissed by the employer; if the trade union sees that this work poses a continuing danger for other workers, it may take up the issue with collective action, including a work stoppage (i.e., a lawful strike or a wildcat strike). In this way, an individual dispute may lead to and become a collective dispute. Similarly, the union may see a point of principle which, if not recognized, will lead it to make new demands, thus giving rise to an interests dispute in future negotiations.

The resolution of an individual dispute will depend largely upon three factors: (1) the extent of legal protection afforded to workers in a particular country; (2) whether or not a worker falls under the umbrella of a collective agreement; and (3) the ease with which a worker can have enforcement of his or her rights, whether they are afforded by law or collective agreement.

Disputes over Victimization and Dismissal

In most countries, however, certain rights enjoyed by an individual will be the same no matter what the length of his or her engagement or the size of the enterprise. These normally include protection against victimization for trade union activity or for reporting to the authorities an employer’s alleged infringement of the law, called “whistle-blower” protection. In most countries, the law affords protection to all workers against discrimination on the basis of race or sex (including pregnancy) and, in many cases, religion, political opinion, national extraction or social origin, marital status and family responsibilities. Those grounds are all listed as improper bases for dismissal by the ILO Termination of Employment Convention, 1982 (No. 158), which also adds to them: union membership and participation in union activities; seeking office as, or acting or having acted as, a workers’ representative; and filing a complaint, or participating in proceedings against an employer involving alleged violation of laws or regulations, or having recourse to administrative authorities. These last three are clearly of particular relevance to the protection of workers’ rights in the field of safety and health. The ILO Committee of Experts on the Application of Conventions and Recommendations recently highlighted the seriousness of retaliatory measures, in particular in the form of termination of employment, taken against a worker who reports the employer’s failure to apply occupational safety and health rules while the workers’ physical integrity, health and even lives may be at risk. When fundamental rights or the physical integrity of lives of workers are at stake, it would be desirable for conditions as to proof (reversal of the burden of proof) and measures of redress (reinstatement) to be such as to allow the worker to report illegal practices without fearing reprisals (ILO 1995c).

However, when it comes to retention of employment in practice, two major determinants of an individual’s employment rights are the enforcement mechanism available to vindicate these rights and the type of contract of employment under which he or she has been engaged. The longer the term of the engagement, generally the stronger the protection. Thus a worker still in the probationary period (in most countries a matter of a few months) will have little or no protection from dismissal. The same is true for a casual worker (i.e., a person engaged on a day-to-day basis) or a seasonal worker (i.e., one employed for a limited, recurring period). A worker with a contract of employment for a fixed term will have protection during the period covered by the contract, but will normally not have a right to its renewal. Workers engaged on contracts that are without limit of time are in the most secure position, but they may still be dismissed for specified reasons or more generally for what is often termed “gross misconduct”. Their jobs may also be eliminated in the course of company restructuring. With increasing pressures for greater flexibility in the labour market, the recent trend in legislation governing contracts of employment has been to make it easier for employers to “shed labour” in the restructuring process. In addition, a number of new forms of work relationships have arisen outside the traditional one of employer/employee. Without employee status, the individual concerned may have little legal protection.

Disputes over a Worker’s Refusal to Perform Hazardous Work

An individual dispute may often arise around the question of an employee’s refusal to perform work that he or she believes to pose an imminent hazard; the belief must be that of a reasonable person and/or be held in good faith. In the United States the reasonable belief must be that performance of the work constitutes an imminent danger of death or serious physical injury. In some countries, this right is negotiated in collective bargaining; in others, it exists by virtue of legislation or court interpretations. Unfortunately, this important right is not yet universally recognized, despite its inclusion as a basic principle in Article 13 of the ILO Occupational Health and Safety Convention, 1981 (No. 155). And even where the right exists in law, employees may fear retaliation or job loss for exercising it, particularly where they do not enjoy the backing of a trade union or an effective labour inspectorate.

The right to refuse such work is normally accompanied by a duty to inform the employer immediately of the situation; sometimes the joint safety committee must be informed as well. Neither the worker who refused nor another in his or her place should be (re)assigned to the work until the problem has been resolved. If this happens nonetheless and a worker is injured, the law may (as in France and Venezuela) subject the employer to severe civil and criminal penalties. In Canada, both the worker who refused the work and the health and safety representative have rights to be present while the employer undertakes an on-the-spot investigation. If the employee still refuses to do the work after the employer has taken remedial measures, an expedited government inspection can be triggered; until that has led to a decision, the employer cannot require the worker to do that work and is supposed to provide him or her with an alternative assignment to avoid earnings loss. A worker designated to replace the one who refused must be advised of the other’s refusal.

Recognition of a right to refuse hazardous work is an important exception to the general rule that the employer is the one who assigns work and that an employee is not to abandon his or her post or refuse to carry out instructions. Its conceptual justification lies in the urgency of the situation and the presence of interests of public order to save life (Bousiges 1991; Renaud and St. Jacques 1986).

Participation in a Strike

Another way in which an individual dispute can arise in connection with a health and safety issue is the participation of an individual in strike action to protest unsafe working conditions. His or her fate will depend on whether the work stoppage was lawful or unlawful and the extent to which the right to strike is guaranteed in the particular circumstances. This will involve not only its status as a collective right, but how the legal system views the employee’s withdrawal of labour. In many countries, going on strike constitutes a breach of the employment contract on the part of the employee and whether this will be forgiven or not may well be influenced by the overall power of his or her trade union vis-à-vis the employer and possibly the government. A worker who has a strong theoretical right to strike but who can be temporarily or permanently replaced will be reluctant to exercise that right for fear of job loss. In other countries, engaging in a lawful strike is explicitly made one of the grounds on which a worker’s employment may not be brought to an end (Finland, France).

Means of Dispute Resolution

The ways in which an individual dispute can be resolved are in general the same as those available for the resolution of collective disputes. However, different labour relations systems offer varying approaches. Some countries (e.g., Germany, Israel, Lesotho and Namibia) provide labour courts for the resolution of both collective and individual disputes. The labour courts in Denmark and Norway hear only collective disputes; individual workers’ claims must go through the regular civil courts. In other countries, such as France and the United Kingdom, special machinery is reserved for disputes between individual workers and their employers. In the United States, individuals have rights to bring actions claiming unlawfùl employment discrimination before bodies that are distinct from those before which unfair labour practice claims are pressed. However, in non-union situations, employer mandated arbitration for individual disputes is enjoying popularity despite criticism from labour practitioners. Where an individual is covered by a collective bargaining agreement, his or her grievance can be pursued by the trade union under that agreement, which usually refers disputes to voluntary arbitration. An individual’s ability to win a claim may ofien depend on his or her access to procedures that are fair, affordable and rapid and whether he or she has the support of a trade union or an able labour inspectorate.



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