Do your supervisors know how to handle a work refusal?
Production is already behind when an employee stops work amid safety worries. Is the concern valid? How should the supervisor proceed? Tough questions, but the law is well-laid out and employers needn’t wonder how to respond.
A worker’s right to refuse unsafe work is entrenched in health and safety laws across Canada. As workers and unions become more cognizant of potential workplace hazards, the likelihood that workers exercise this right to refuse unsafe work increases.
It is increasingly important for supervisors and managers to be familiar with what the law requires as related to work refusals and allegations of unsafe work or working conditions. The economic consequences of an improperly handled work refusal can be significant. With the enactment of federal Bill C-45, known as the corporate killing law, criminal consequences could also be lurking.
What is unsafe work?
Each jurisdiction in Canada has its own specific definition of unsafe work. In some jurisdictions, unsafe work is work that is “likely to endanger” a worker or a worker’s health and safety. In others, it is work that involves an “unusual danger” or “undue hazard” that is not normal for that type of work. Still in others, unsafe work is defined as work that poses an imminent or immediate danger.
Despite these varying definitions, the common element is the worker’s subjective belief that a danger exists — at least, at the first stage of refusal. The worker’s ability to trigger a work refusal on subjective grounds means that each work refusal must be taken seriously, even if the supervisor or manager believes that the work is safe.
Reporting and investigation procedures
A worker exercising the right to refuse work must follow precise rules that are outlined in the health and safety legislation of each jurisdiction. Failure to follow the prescribed steps may result in the worker being unable to rely on legal protection from reprisal. However, failure by an employer to respond to a work refusal or to properly investigate could result in more serious criminal charges against a supervisor or the company.
Generally in Canada, the first stage of a work refusal begins when a worker reports the unsafe work to the supervisor. The worker must explain that he is refusing to perform the work because he believes it is unsafe, and then explain why he believes it is unsafe.
Whether the supervisor shares that belief or not, she must undertake an investigation of the work while the worker remains in a safe location close to the work station. In most jurisdictions, the supervisor must be accompanied by a health and safety representative or another representative in this investigation.
If, following this initial investigation, the worker continues to refuse to work, a second-stage investigation occurs. During this second stage, an objective test is applied to the worker’s belief that the work is unsafe.
In some jurisdictions, such as Ontario, an inspector from the labour ministry is contacted and, if the inspector is satisfied that the employee has “reasonable grounds” to believe that the work is unsafe, the inspector will investigate the situation and provide a report to the employer.
During these different stages of the refusal, an employer may assign the worker who has exercised the right, to other reasonable work. The employer may ask another worker to perform the refused work, but this replacement worker must be told that the work was refused by another worker and the reason it was refused.
In Saskatchewan, this information must be provided in writing. In Ontario, this information must be conveyed in the presence of a committee member or a health and safety representative.
In all jurisdictions, an employer is prohibited from penalizing, dismissing, disciplining or threatening a worker who exercises this right to refuse unsafe work. However, a worker is generally not protected from reprisal action if the work refusal was made in bad faith, if the reasons were not related to safety, or if the worker continues to refuse to perform the work even after a labour ministry inspector has deemed the work safe.
Potential impact of Bill C-45 on work refusal
Bill C-45 did not alter the work refusal procedures or change the definitions of unsafe work. However, it may result in a greater commitment by organizations to respond to work refusals.
The bill introduces the chance that Criminal Code charges of “criminal negligence” be laid against an organization, its managers or supervisors where “wanton or reckless disregard” for the lives or safety of a worker is shown.
If an employer ignores or responds superficially to worker concerns, that employer response could be seen to constitute such disregard. Here’s how that could occur.
Bill C-45 created new duties, under section 217.1 of the Criminal Code, for both individuals (such as supervisors and managers) and organizations to take reasonable steps to protect workers and the public. A primary focus of the new provisions is to make it easier to convict organizations and individuals within that organization of criminal negligence for injuries to workers caused by the gross negligence of a supervisor, manager and senior officers.
In order for a breach of the duty to amount to criminal negligence, the Crown must prove beyond a reasonable doubt that the breach of the duty represented a “marked and significant departure from the standard of a reasonably prudent person in the circumstances.” There must be evidence of behaviour which shows complete disregard for, or indifference to the duty that shows a criminal standard has been met.
This “marked and significant departure from the standard of a reasonably prudent person” may be present if a supervisor or employer had failed to investigate a work refusal or to correct an unsafe condition, if a worker is subsequently injured while performing the work. Employers can be assured that the police investigators and prosecutor will take a keen interest in the results of a work refusal, if that situation arose.
Philip Bender is an associate with Toronto law firm, Stringer Brisbin Humphrey. He specializes in labour relations matters including privacy issues, employment standards, occupational health and safety, human rights and workers’ compensation law. He can be reached at (416) 862-1616 or [email protected].
A worker’s right to refuse unsafe work is entrenched in health and safety laws across Canada. As workers and unions become more cognizant of potential workplace hazards, the likelihood that workers exercise this right to refuse unsafe work increases.
It is increasingly important for supervisors and managers to be familiar with what the law requires as related to work refusals and allegations of unsafe work or working conditions. The economic consequences of an improperly handled work refusal can be significant. With the enactment of federal Bill C-45, known as the corporate killing law, criminal consequences could also be lurking.
What is unsafe work?
Each jurisdiction in Canada has its own specific definition of unsafe work. In some jurisdictions, unsafe work is work that is “likely to endanger” a worker or a worker’s health and safety. In others, it is work that involves an “unusual danger” or “undue hazard” that is not normal for that type of work. Still in others, unsafe work is defined as work that poses an imminent or immediate danger.
Despite these varying definitions, the common element is the worker’s subjective belief that a danger exists — at least, at the first stage of refusal. The worker’s ability to trigger a work refusal on subjective grounds means that each work refusal must be taken seriously, even if the supervisor or manager believes that the work is safe.
Reporting and investigation procedures
A worker exercising the right to refuse work must follow precise rules that are outlined in the health and safety legislation of each jurisdiction. Failure to follow the prescribed steps may result in the worker being unable to rely on legal protection from reprisal. However, failure by an employer to respond to a work refusal or to properly investigate could result in more serious criminal charges against a supervisor or the company.
Generally in Canada, the first stage of a work refusal begins when a worker reports the unsafe work to the supervisor. The worker must explain that he is refusing to perform the work because he believes it is unsafe, and then explain why he believes it is unsafe.
Whether the supervisor shares that belief or not, she must undertake an investigation of the work while the worker remains in a safe location close to the work station. In most jurisdictions, the supervisor must be accompanied by a health and safety representative or another representative in this investigation.
If, following this initial investigation, the worker continues to refuse to work, a second-stage investigation occurs. During this second stage, an objective test is applied to the worker’s belief that the work is unsafe.
In some jurisdictions, such as Ontario, an inspector from the labour ministry is contacted and, if the inspector is satisfied that the employee has “reasonable grounds” to believe that the work is unsafe, the inspector will investigate the situation and provide a report to the employer.
During these different stages of the refusal, an employer may assign the worker who has exercised the right, to other reasonable work. The employer may ask another worker to perform the refused work, but this replacement worker must be told that the work was refused by another worker and the reason it was refused.
In Saskatchewan, this information must be provided in writing. In Ontario, this information must be conveyed in the presence of a committee member or a health and safety representative.
In all jurisdictions, an employer is prohibited from penalizing, dismissing, disciplining or threatening a worker who exercises this right to refuse unsafe work. However, a worker is generally not protected from reprisal action if the work refusal was made in bad faith, if the reasons were not related to safety, or if the worker continues to refuse to perform the work even after a labour ministry inspector has deemed the work safe.
Potential impact of Bill C-45 on work refusal
Bill C-45 did not alter the work refusal procedures or change the definitions of unsafe work. However, it may result in a greater commitment by organizations to respond to work refusals.
The bill introduces the chance that Criminal Code charges of “criminal negligence” be laid against an organization, its managers or supervisors where “wanton or reckless disregard” for the lives or safety of a worker is shown.
If an employer ignores or responds superficially to worker concerns, that employer response could be seen to constitute such disregard. Here’s how that could occur.
Bill C-45 created new duties, under section 217.1 of the Criminal Code, for both individuals (such as supervisors and managers) and organizations to take reasonable steps to protect workers and the public. A primary focus of the new provisions is to make it easier to convict organizations and individuals within that organization of criminal negligence for injuries to workers caused by the gross negligence of a supervisor, manager and senior officers.
In order for a breach of the duty to amount to criminal negligence, the Crown must prove beyond a reasonable doubt that the breach of the duty represented a “marked and significant departure from the standard of a reasonably prudent person in the circumstances.” There must be evidence of behaviour which shows complete disregard for, or indifference to the duty that shows a criminal standard has been met.
This “marked and significant departure from the standard of a reasonably prudent person” may be present if a supervisor or employer had failed to investigate a work refusal or to correct an unsafe condition, if a worker is subsequently injured while performing the work. Employers can be assured that the police investigators and prosecutor will take a keen interest in the results of a work refusal, if that situation arose.
Philip Bender is an associate with Toronto law firm, Stringer Brisbin Humphrey. He specializes in labour relations matters including privacy issues, employment standards, occupational health and safety, human rights and workers’ compensation law. He can be reached at (416) 862-1616 or [email protected].
