Module 8: Right to Refuse Dangerous Work

Do you know you have the right to refuse dangerous work? In this module, you will learn when you can exercise this right, how you can exercise it and the process that is to be followed. By knowing your rights as an employee, you can help make your workplace safer!

By the National Joint Council

Topics include:

• What is danger?
• Process to follow:
  • Stage 1
  • Stage 2
  • Stage 3
• Refusal on board a ship at sea
• Workplace refusal to work flowchart
• Quiz: 4 questions
• Going further than that…

Module 8: Right to Refuse Dangerous Work

The Canada Labour Code, Part II, (the Code, Part II) establishes a legislative framework to ensure a healthy and safe workplace by preventing physical and psychological injuries and illnesses in the workplace. This legal framework establishes a number of rights and obligations for managers and employees. One fundamental right of employees is the right to refuse work that could reasonably be expected to be an imminent or serious threat to the life or health of the employee exposed to it, before the hazard or activity can be corrected or the task modified.

Section 128 of the Code, Part II, establishes a formal work refusal process that enables the parties to carry out a graduated series of interventions to resolve a potential or actual work-related danger. Managers, employees, and their workplace occupational health and safety (OHS) committee or health and safety representative (where necessary) should work together to find reasonable measures to resolve the issue.

What is danger?

Danger is a hazard, condition, or an activity that could reasonably be expected to be an imminent or serious threat to your life or health, if you are exposed to it before the hazard or condition is corrected, or the activity altered.

You have the right to refuse dangerous work!

• If you believe your use or operation of a machine or thing constitutes a danger to you or to another employee;
• If you believe a condition exists in the workplace that constitutes a danger to you; or
• If you believe your performance of an activity constitutes a danger to you or to another employee.

However, you do not have the right to refuse dangerous work in the following circumstances:

• The refusal to work will put the life, health, or safety of another person directly in danger;
• Under normal conditions, the dangerous condition is an inherent part of your work (your level of training, knowledge and experience is considered when determining normal working conditions); or
• If you are on board a ship or an aircraft, you cannot refuse to work while the ship or aircraft is in operation if the person in charge of the ship or aircraft determines that the refusal would endanger you, your co-workers, or the safe operation of the ship or aircraft.

No disciplinary action or penalty can be imposed on or taken against you when you, acting in accordance with the provisions of the Code, Part II, participate in the refusal process. However, if the employer can demonstrate that you willfully abused those rights, disciplinary action could be taken.

A refusal to work should only be made in the true interest of safety.

If you wish to exercise the right to refuse dangerous work, you must be at work or entering the workplace. You shall stop working and continue to receive wages and benefits during the refusal process.

During the refusal process your supervisor may assign you to other work or to work in a different location. You are not entitled to go home. However, your supervisor cannot assign any other employee to use or operate the machine or object, to work in that place or to perform the activity until a Labour Program health and safety officer has been notified of a continued refusal.

Process to follow

Stage 1

You shall report your refusal to work and explain the danger, preferably in writing, to your supervisor. In order to do so, you can complete the Refusal to Work Registration form (LAB1069). Employees in industries under federal jurisdiction use this form to register a refusal to work in case of danger.

Stage 1 of the investigation shall be conducted by the supervisor, in the presence of you, the employee who reported the alleged danger, to determine if there is a danger. The investigation can be conducted even if you or the person designated to represent you choose not to be present. If more than one employee has refused to work, then one of those employees is to be present during the investigation. Your supervisor shall complete the “Refusal to Work Investigation Employer Report” section in the Workplace Investigation Reports on Refusal to Work form (LAB1184). Your supervisor may consult your department’s[1] occupational health and safety specialist to obtain this form. Your supervisor shall decide (one of the decisions listed below) whether they agree with the refusal, and they shall communicate this to you.

Your supervisor agrees there is a danger

Your supervisor takes immediate action to correct the danger and informs the workplace OHS committee or representative of the resolved refusal.

Your supervisor determines there is no danger, and you agree

You go back to work.

Your supervisor determines there is no danger, and you disagree

You advise your supervisor that you do not agree with your supervisor’s findings and of your continued refusal to work. You or your supervisor advise the workplace OHS committee co-chairs or OHS employee representative of the continued refusal to work and provide a copy of the “Refusal to Work Investigation Employer Report” section to the workplace OHS committee co-chairs or health and safety representative.

Stage 2

Stage 2 of the investigation is conducted by the workplace OHS committee or health and safety representative.

The management co-chair and employee co-chair of the workplace OHS committee (or their delegates), or the health and safety representative (if the representative is not available, you may select another employee) shall investigate the work refusal immediately, in the presence of you and a person designated by the employer. The investigation may proceed in your absence if you choose not to be present during the investigation.

The Stage 2 investigators shall complete the “Workplace Committee or Safety Representative Investigation Report” section in the Workplace Investigation Reports on Refusal to Work form (LAB1184). The Stage 2 investigators shall determine whether they agree or disagree with the refusal to work and present their findings and recommendations to your supervisor and you.

The investigation concludes that there is a danger, and your supervisor agrees

Your supervisor takes immediate corrective action, informs you and the OHS committee or representative, and you return to work.

The investigation concludes that there is no danger, and you agree

You return to work.

The investigation concludes that there is no danger, and you disagree

You shall report the continued refusal to your supervisor and the workplace OHS committee or health and safety representative, and your supervisor shall notify the Minister’s representative at the local office of the Labour Program.

Stage 3

The Workplace Investigation Reports on Refusal to Work form (LAB1184) shall be forwarded to the Minister’s representative. When the representative is informed of the continued refusal, the representative shall investigate the matter unless the representative is of the opinion that the matter does not require an investigation.

If the Minister’s representative does not proceed with an investigation, the representative shall inform you and your supervisor, in writing, as soon as feasible of the decision. Your supervisor is then required to inform the OHS committee or OHS representative of the decision. On being informed of the decision not to proceed with the investigation, you are no longer entitled to continue your refusal to work.

If the Minister’s representative proceeds with the investigation, the refusal may continue. The representative of the Minister may investigate in the presence of you, along with one other person who is an employee member of the OHS committee or the OHS representative.

If an employee member of the OHS committee or the OHS representative is not available, you may designate another employee from the workplace to participate. The Minister’s representative may proceed with an investigation if any of the aforementioned do not wish to be present.

Your supervisor may request that you remain at a safe location during the Minister’s investigation or assign you other, reasonable work.

If the Minister’s representative determines there is no danger

You go back to work. You (or your designate) may appeal the decision in writing within 10 days to an appeals officer. You continue to work while the appeal is in progress.

If the Minister’s representative determines there is a danger

The Minister will issue a direction to the employer to take corrective action. You do not do the work until the corrective action is completed.

Refusal on board a ship at sea

A refusal on board a ship at sea follows the same process; however, there are a few differences:

• You shall immediately notify the Commanding Officer of the ship of the circumstances of the danger. The Commanding Officer shall, as soon as is practicable, investigate to determine if the refusal affects the safe operation of the vessel.
• If the Commanding Officer determines that the refusal may affect the safe operation of the vessel, the refusal shall not be investigated until the vessel is alongside a wharf in Canada.
• If it is determined by the Commanding Officer that the refusal does not affect the safe operation of the vessel, the Commanding Officer shall conduct or assign a manager to conduct Stage 1 of the investigation and, if necessary, the OHS committee or representative shall conduct Stage 2 of the investigation.
• If the refusal must be raised to the Minister’s representative at Transport Canada, the investigation shall take place once the vessel is alongside a wharf in Canada.

Workplace Refusal to Work flowchart

Reference: Information on Occupational Health and Safety –
Pamphlet 4 Right to refuse dangerous work, Labour Program, 2017

Workplace Refusal to Work flowchart text version

• Employee refuses and notifies employer 128.(6)
  Employer investigates in presence of employee, and employer writes employer Report 128.(7.1)
• Employee satisfied, returns to work.
• Employee not satisfied, employee notifies employer and committee/representative 128.(9)
• Committee/Representative investigates in presence of employee 128.(10), provides a report of investigation results and recommendations to employer 128.(10.1)
• Revised Report if deemed appropriate and presented
• Employer provides additional information to committee/representative 128.(10.2)
• Employer decides 128.(13)
• DANGER 128.(13)(a)
• Employer takes corrective action and employer notifies committee/representative 128.(14)
• Employee satisfied, returns to work
• REFUSAL NOT PERMITTED 128.(13)(b)
  Other persons put in DANGER 128.(2)(a)
  DANGER is a normal condition of employment 128.(2)(b)
• Employer provides written decision to employee 128.(15)
• NO DANGER 128.(13)(c)
• Employee continues to refuse and notifies employer 128.(15)
• Employer notifies Minister and present his investigation reports and notifies committee/representative 128.(16)

Quiz – Module 8: Right to Refuse Dangerous Work

1. In order for an employee to refuse dangerous work, you must be at the workplace or entering the workplace.
   1. True
   2. False
2. What is the first step that you must take if you decide to refuse dangerous work?
   1. Report to your supervisor
   2. Report to the OHS committee
   3. Report to the Minister’s representative
3. Identify when you may not be entitled to exercise the right to refuse work.
   1. When the danger is a normal condition of employment
   2. When the refusal may affect the safety of other employees
   3. When working on board an operational ship or aircraft, and the person in charge of the ship or aircraft determines that the refusal would endanger the employee, their co-workers or the safe operation of the ship or aircraft
   4. All of the above
4. An employee has the right to continue to refuse to work if they do not agree with the supervisor’s investigation findings.
   1. True, as long as you are not working on board an operational ship or a plane
   2. True, regardless of the circumstances
   3. False

Module 8: Going further than that…

You are invited to enhance your skills and knowledge by consulting the following links.

Links to reference material

• Information on Occupational Health and Safety – Pamphlet 4 Right to refuse dangerous work
• Workplace Investigation Reports on Refusal to Work form (LAB1184)
• Refusal to Work Registration form (LAB1069)

 

[1] In this training package, “department” is generally used to refer to federal departments and agencies.