When is an employee discriminated against because of odours in the workplace? In the recent decision of Gillis and Nova Scotia (Public Service Commission), Re, (https://canlii.ca/t/gncqd), the Nova Scotia Labour Board considered this issue. An employee advised management that scents worn by co-workers caused him dizziness, nausea, migraines, loss of appetite, insomnia, anxiety and depression. The employee agreed to create scent-sensitivity signage and produce emails and webcasts for employees about the importance of scent-free workspaces.
The employee exercised his right to refuse unsafe work pursuant to s.43(1) of the Occupational Health and Safety Act because another employee was wearing a fragrant body spray. The employee eventually agreed to return to work. Within two months from the employee’s return, co-workers complained that the employee had made disparaging or threatening remarks about them. The employee had previously been disciplined for similar conduct. The employer made the decision to terminate. The employee claimed the termination was discriminatory or punishment for refusing unsafe work.
The Board held that the termination was not influenced by the employee’s decision to exercise his right to refuse unsafe work since no penalty had been imposed on him when the incident occurred and because the employer had a track record of listening to and responding to the employee’s scent concerns. The Board stated that subjective beliefs that scents caused harm was not sufficient to trigger a right to refuse unsafe work. A similar result was reached in Kovios v. Inteleservice Canada Inc. (https://canlii.ca/t/fsc8s) where an employee alleged discrimination due to sensitivity to scents undetectable by most. The Ontario Human Rights Tribunal held that the employee had failed to explain the accommodation being sought and the employer had made efforts to accommodate.
These cases demonstrate that employers must make efforts to accommodate scent sensitivity. However, decision makers are alive to the difficulties caused by the subjectivity of scent sensitivity. An employer must be able to demonstrate that alleged unsafe work conditions are reasonable, and propose concrete accommodations.