Right to Refuse

Workers have a right to refuse to do any work that constitutes a danger. However this right hinges on the legal definition of what is dangerous, found in the interpretation section of Part II of the Canada Labour Code: Health & Safety.

Section 122 (1) "Danger" means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.

This definition of danger means that workers have the right to refuse to do any task that they believe will cause injury or illness to them:

  • If there is a hazard, a condition or and activity involved that might cause an injury;
  • If the injury or illness might only appear in the future and is not imminent;
  • If the task involves a hazardous substance;
  • If the task might cause a chronic illness;
  • If the task might cause a disease;
  • If the task might damage the reproductive system.

Section 128 (1)

Workers have the right to refuse work if they have reasonable cause to believe it will place them in danger, or place other workers in danger.

"Reasonable cause to believe" means that a worker has some knowledge that the work will cause them harm. This belief could include the following:

  • heard about;
  • read about;
  • been told about;
  • have seen injuries or illnesses occur;
  • suspect because of past exerience;
  • have been involved in.

Workers do not have to prove that a danger exists in order to refuse -- only reasonably believe that it exists.

Section 128 (2)

Workers cannot refuse to do dangerous work if their refusal:

  • puts the life, health or safety of another person directly in danger; or
  • is a normal condition of employment (for example police responding to violent situations, emergency response workers dealing with bomb threats, etc.)

Steps To Be Followed When Refusing To Do Dangerous Work

STEP 1

  • Report at once your refusal to your immediate supervisor. Section 128 (6).
  • If the collective agreement has a process for dealing with refusals, you can choose that route or use the requirements of Part II. Inform your supervisor regarding which route your are choosing. Once you made this choice, it cannot be changed unless both parties agree. Section 128 (7).
  • Your supervisor must investigate the circumstances of the refusal and if he or she agrees that a danger exists, he or she must take immediate action to protect employees from the hazard. (This could include eliminating the hazard, eliminating the exposure or stopping the process). Until then, the worker should be in a safe place. A report of the action taken must be given to the Workplace Health and Safety Committee or Representative. Section 128 (8).
  • If the supervisor does not agree that there is a danger or does not take adequate steps to resolve the danger, you can continue to refuse. You must immediately report the circumstances to the employer and to the Workplace Committee or Representative. Section 128 (9).

STEP 2

  • The employer must immediately start an investigation in the presence of the worker and a worker representative from the Workplace Committee or the Workplace Representative. (Where there is no Committee or Representative the worker can select another worker to be present). Section 128 (10).
  • If a group of workers are refusing, they can all be present or appoint one of them to represent them during the investigation. Section 128 (11).

STEP 3

  • If the employer does not agree that there is a danger or does not take adequate steps to resolve the danger, workers can continue to refuse. The employer must inform the Health and Safety Officer of the continued refusal.Section 128 (13).
  • The employer must inform the Workplace Committee or Representative of a continued refusal. Section 128 (14).
  • Workers should stay in a safe place until the Health and Safety Officer has arrived and completed the investigation. The employer may reassign workers to do another job that they are qualified to do. Section 128.1 (1) (3).

STEP 4

  • The Health and Safety Officer must without delay investigate the refusal Section 129 (1). The investigation must be conducted in the presence of the following: 
    • a worker member of the Workplace Committee, or
    • The Workplace Representative;
    • the worker refusing or their designate;
    • the employer.
  • When the investigation is done, the Officer shall immediately give a written copy of the decision to the worker and the employer. Section 129 (4).
  • If the Officer concludes that a danger exists she/he shall issue a direction to the employer and the worker can continue to refuse until the employer has complied with the direction. Section 129 (6).
  • If the Officer concludes that no danger exists, the worker must stop the work refusal. Section 129 (7).

Workers have the right to appeal any decision of the Health and Safety Officer to an Appeals Officer. Section 145.

Workers who are affected by a work refusal are entitled to be paid for any time lost during their current shift --Section 128.1 (1).
However, if the worker who refused is found to have willfully abused his/her right to refuse, those affected workers may have to repay any wage that they were given during the stoppage.

It is illegal to discipline or threaten to discipline any worker who has exercised his/her right to refuse to do dangerous work. Section 147.

Source: Union Guide - To Part II Canada Labour Code: Health & Safety.