In the exercise of every right, there is a corresponding obligation to the person asserting that right. This same principle applies when employees exercise their right to work refusals. Canadian laws have established certain procedures and limits to this right, which employees and employers must know.
What are work refusals in Canada?
Work refusals are one of the basic rights granted to employees and workers in Canada. This is implemented by the different Canadian occupational health and safety (OHS) laws in the federal or provincial jurisdictions.
These three basic rights are:
1. Right to Know:
- to be informed by the employer of any existing or possible hazards in the workplace, including its safe work policies
- to be trained or educated on any workplace procedures to protect one’s and others’ health and safety
- to be informed of workplace procedures in reporting emergencies and incidents which may result or have resulted in injuries and/or death
2. Right to Participate:
- to be a part of a health and safety committee, whenever appropriate
- to join in all decision-making processes, especially on workplace policies that affect employees
3. Right to Refuse: to refuse any work, subject to the appropriate procedure, when there’s reasonable cause to believe that a workplace hazard will cause injury or death to the employee and/or their co-employees
Find out what you need to do when employee is injured at work in this article.
What are the procedures for work refusals under Canada’s laws?
Certain obligations are imposed on the employee when one refuses to work due to workplace hazards.
Employers are also granted some rights to a certain degree when their employees refuse to work.
Both employers or employees may consult with lawyers specializing in occupational health and safety regarding these rights and obligations.
Work refusals, to be valid and legal, must comply with the appropriate OHS laws:
- Canada Labour Code
- Canada OHS Regulations
- Provincial laws, for example:
- Ontario: OHS Act
- Québec: Act respecting Occupational Health and Safety
- British Columbia: OHS Regulation
The overall goal in laying these procedures in work refusals is to address the workplace hazard, prevent any injury from happening, and for the worker to return to work safely.
Grounds
Work refusals can only be exercised if the employer did not comply with when the right to know or the right to participate. This can also happen if the employer’s compliance still fails to address the health and safety concerns in the workplace.
A work refusal in Canada is valid when it will endanger the employee, their co-employees, or other persons, based on a reasonable cause, during:
- the performance of an activity or any task; or
- the operation of a machine or equipment
It may also be based on the physical condition of the workplace, or the presence of violence in the workplace.
Work refusals must be based on a “reasonable cause”. There must be an actual belief that these grounds present imminent or serious injury. As such, it cannot not be due to a baseless presumption, mere suspicion, or vague reasons.
Watch this video to know more about these grounds and its examples:
Speak with a lawyer to learn more about when an employee can refuse work, or the duties of an employer in such circumstances. Businesses in Ottawa or Toronto may consult with an OHS lawyer in Ontario as ranked by Lexpert.
Exceptions
There are certain circumstances where the right to refuse work cannot be exercised:
- when it’s the normal condition of employment, especially when the employee is informed and agreed to it upon hiring
- when the refusal to do a task puts in danger the life, health, or safety of another person or a co-employee
Certain classes of employees also have a limited exercise of this right such as police officers, firefighters, or health care workers.
Employees working on a ship or an aircraft will also have different procedures. They are required to inform the person in charge regarding the work-related danger. The person in charge will then decide what to do.
Procedure in work refusals
The specifics of the process are outlined in the laws mentioned above, but here’s a general overview:
1. Employee informs the employer or the committee
First, an employee who refuses to work must inform their employer and the health and safety committee whenever applicable.
The employee must provide reasonable cause for their refusal to work.
2. Investigation by the employer
The employer and the committee will proceed with investigating the workplace hazard or dangerous situation reported by the employee.
An investigation must be carried out in the presence of the employee or a representative in their absence.
After the investigation, the employer will provide a workplace investigation report. If the employer agrees with the employee that a workplace hazard or dangerous situation exists, the employer will address these for the employee to safely return to work.
There may be some variations for businesses under provincial laws. In general, the same procedures are followed.
3. Continued refusal by the employee or employee returns to work
If the employee does not agree with the decision of the employer, the employee may still continue to refuse to work.
The continued refusal will trigger an investigation by the workplace committee or workplace representative. They will then provide a workplace investigation report to the employer.
There are two possible outcomes:
- If the employer agrees with the workplace investigation report: the employer shall order corrective measures; or
- If the employer disagrees with the workplace investigation report: the employer shall inform the employee.
If the employee agrees with the corrective measures or agrees with the decision of the employer, they shall return to work. Otherwise, the employee may continue to refuse to work and file a report with the Minister of Labour.
4. Investigation by the Minister
At this point, the Minister may either:
- investigate the work refusal; or
- decline to investigate if the matter is best resolved by other laws, or if the work refusal was made in bad faith
The employee may no longer refuse to work if the Minister declines to investigate the matter.
However, if the Minister decides to investigate the matter, the decision may either be:
- if the danger exists: the Minister issues a directive to the employer, and the employee returns to work
- if the danger does not exist: the Minister informs the employer and the employee, and the employee is directed to return to work
5. Appeal
If the employee opposes the decision of the Minister, they may appeal the decision with the OHS Tribunal.
As a last recourse, the decision of the Tribunal may be appealed for judicial review before the courts. Here, the employer or the employee can be represented by an occupational health and safety lawyer.
To hear more from legal counsel on work refusals under Canada’s laws, consult with a Lexpert-Ranked occupational health and safety lawyer in Canada