Supreme Court of Canada: While deciding the question as to whether under the Quebec’s Act respecting occupational health and safety, a pregnant supply teacher qualifies as eligible “worker” for Preventive Withdrawal and earnings-replacement indemnity and whether her refusal to perform work in an unsafe workplace precludes formation of contract of employment, the Court held that the purpose of the Act is to ensure the health and safety of workers by protecting them from workplace dangers. Refusal to unsafe work, or to any new assignments or temporary withdrawal from workplace are not to be seen as absence from work. They should be deemed as a substitute for work that the employee would do in the absence of the danger; hence, the refusal to perform unsafe work is the exercise of a legislated right and not a refusal to fulfill the employment contract. The workers are thus, protected from having to choose between job security and their health or safety.
In the present case a pregnant supply teacher was advised that she was vulnerable to contagious viruses which could harm her fetus. Due to the health risk the Commission de la santé et de la sécurité du travail told her that she was entitled to reassignment or Preventive Withdrawal. However, Commission des lésions professionnelles (“CLP”), concluded that she was ineligible for Preventive Withdrawal because of her inability to go into the classroom. Hence, she was outside the scope of the protection provided by the Act. The Court while allowing the appeal, held that as soon as the appellant agreed the offer to supply teach, she became a “worker” withing the definition of the Act. The dangerous workplace is the incapacity that prevented her from performing the work, her pregnancy is not an incapacity. A pregnant worker’s legislative right cannot be used to conclude that her Preventive Withdrawal negates the formation of the contract of employment. What prevents the performance of work is the employer’s inability to provide a safe working alternative and not the pregnancy. To conclude otherwise will negate the objectives of the Act and will penalize pregnant women for doing what the legislative scheme mandates i.e. avoiding workplace health risks during pregnancy. Dionne v. Commission Scolaire Des Patriotes, 2014 SCC 33, decided on 1 May, 2014
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