11.1 A Case Study
Story: Andrea MacPhee-Lay
Andrea MacPhee-Lay was a massage therapist at the Fairmont Chateau Lake Louise hotel near Banff, Alberta. The hotel spa provided a range of massage treatments, including a hot-rock treatment where basalt rocks are heated in water to 49 degrees Celsius and strategically placed on the client’s back. Ideally, the rocks should be heated in a purpose-built, stone kettle. Fairmont had developed a practice of using two stainless steel roasters filled with hot water.[1] At a staff meeting on September 12, 2012, the Spa Director announced plans to replace the roasters with a household-grade electric Black and Decker grill.
MacPhee-Lay expressed concern about the proposed change, citing a variety of safety concerns, including the risk of the rocks exploding on the dry heat grill and the fact that dry stone heating was not an approved use of the household grill. After the meeting, MacPhee-Lay conducted internet research into using grills for heating basalt rocks. She later presented her findings to the Spa Director, the Lead Therapist, and a worker representative on the JHSC. Over the next few weeks, she repeatedly raised her concerns about the safety of this practice and also sought advice from Alberta Occupational Health and Safety officials.
On September 28, MacPhee-Lay was suspended and on October 1 terminated. No reasons for the termination were provided, although the employer asserted that there were performance issues that warranted termination.
MacPhee-Lay filed an OHS complaint over her dismissal, claiming she was disciplined for acting in compliance with the OHS Act, which requires her to report workplace hazards that pose an imminent danger. The investigating officer dismissed her complaint, finding insufficient evidence to link the dismissal to the dispute over the grill. MacPhee-Lay appealed the officer’s decision to the Alberta Occupational Health and Safety Council, who upheld the decision.
The decision to uphold the officer’s ruling was based mostly on technical grounds. Alberta’s OHS Act requires a worker to report and refuse unsafe work if the work poses an imminent danger. The Act also protects workers who exercise this right from retaliation. The panel reasoned that the grill, which was not yet in use, did not pose an imminent danger at the time of the refusal. For this reason, MacPhee-Lay’s actions were not strictly “in compliance” with the Act and she could not claim protection under the Act. Interestingly, Fairmont eventually decided not to use the grill for hot-rock treatment.
While the facts are complex, this case illustrates how health and safety issues develop differently in practice than they do in textbook examples. In theory, MacPhee-Lay acted appropriately. She expressed concerns about a hazard and conducted research to support them. Yet her employer seems to have fired her for trying to ensure her workplace was safe. In considering this case, we need to recognize that the circumstances of her complaint cannot be disentangled from the dynamics of her employment relationship, which had begun to deteriorate prior to the complaint. We should also be cognizant that she was challenging her employer’s ability to implement a new work process, behaviour that employers often suppress by disciplining one worker as an example to the rest.
The case also points out weaknesses in OHS laws and government enforcement activity. MacPhee-Lay’s case was not decided on the merits of her safety concern. Neither the OHS officer nor the panel disputed her claims about the grill’s safety hazards. Instead, her complaint was dismissed based upon a narrow reading of the Act that produced a procedural loophole the appeal panel used to excuse the employer’s conduct. Research suggests that arbitration and labour boards often defer to employers in matters of disciplining workers who refuse unsafe work. [2]
This chapter examines OHS in practice to reveal the ways in which working toward safety in real workplaces is more complex than we might anticipate. It extends our analysis of how power shapes workplace health and safety. It looks at how the internal responsibility system does not work exactly as intended. And it also considers the nature of government OHS enforcement in the 21st century and how it can impede workplace safety. The chapter concludes by offering some practical tips for workers, OHS activists, and safety practitioners about how to improve safety in Canadian workplaces.
- Alberta Occupational Health and Safety Council. (2014). Order: Andrea L. MacPhee-Lay and FHR Lake Louise Operations Corporation. Edmonton: Government of Alberta. ↵
- Harcourt, M., & Harcourt, S. (2000). When can an employee refuse unsafe work and expect to be protected from discipline? Evidence from Canada. ILR Review, 53(4), 684–703. ↵
