Procedure to Refuse Unsafe Work

Introduction

Humber employees have the right to refuse unsafe work. This right, and the process by which it is to be invoked is clearly set out in the Occupational Health and Safety Act.

As described in the Act:

“A worker may refuse to work or do particular work where he or she has reason to believe that,

  1. any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;
  2. the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; 
    b.1) workplace violence is likely to endanger himself or herself; or    
  3. any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.” (Occupation Health & Safety Act; Section 43 (3)). 

This right is meant to be used in good faith under circumstances in which an employee has reason to believe the work may endanger their health and safety, or that of a co-worker. The Act prohibits the employer from penalizing an employee who has acted in compliance with, or sought enforcement of the Act, including exercising their right to refuse unsafe work.          

Date of Document: July 2005, Revised April 2012

Objective

The following procedure has been prepared as a guide to the work refusal process and to ensure compliance with the specific legislative requirements set out in the Act. See Appendix A for the flow chart outlining the work refusal process.

Applicable Legislation:
o Occupational Health and Safety Act, R.S.O. 1990, Chapter 0.1 as amended
Refer to Sections 43 and 50.

Scope

This procedure applies to all Humber employees.

Responsibilities

A. Employees

First Stage Refusal Investigation:

If you choose to invoke your right to refuse to work because you have reason to believe that the work is likely to endanger yourself or another employee you must:  

  1. Promptly report to your supervisor / manager that you are refusing to work for reasons of health and safety. Provide specific information regarding the circumstances of your refusal.
  2. Be available for, and participate in, the investigation of the circumstances relating to your refusal to work. This investigation, led by your supervisor / manager must be done in your presence and in the presence of a union member (worker representative) of the Joint Health and Safety Committee.
  3. Return to work, if as a result of the investigation the matter has been resolved and you are satisfied that the work can be done safely.

Second Stage Refusal Investigation:

You may continue to invoke your right to refuse to work if, as a result of the initial investigation and actions taken, if any, the matter has not been satisfactorily resolved. At this “second stage” of the work refusal process you must have “reasonable grounds” to believe that the equipment, machine, device, thing or the physical condition of the workplace continues to be likely to endanger yourself or another employee. 

If you choose to continue to invoke your right to refuse to work you must:        

  1. Advise your supervisor / manager of the reasons why you are continuing to refuse to work.
  2. Be present for the “second stage” of the investigation. An Inspector from the Ministry of Labour must be involved in this stage of the investigation. Once notified of a work refusal, an Inspector must investigate the matter. The inspector will determine who is to be involved in the investigation. This may include but is not limited to the person making the refusal, their Joint Health and Safety Committee representative and the supervisor.Following the investigation the Inspector must decide whether the machine, device or thing or the workplace or part thereof is likely to endanger. The Inspector must provide his / her decision in writing.  You will receive a copy of the Inspector’s report.
  3. Remain at a safe place near the workstation during normal working hours, pending the investigation and decision of the Inspector, unless you have been assigned reasonable alternative work or other have been given other direction by your supervisor / manager. Any re-assignment or direction given must not contravene your Collective Agreement.  
  4. Return to work once the matter has been resolved - once the Inspector has determined there is no contravention of the Act or Regulations, or after your supervisor / manager has taken corrective action to address the order(s) given by the Inspector.

 B. Supervisor/Manager

First Stage Refusal Investigation:

Once advised of a refusal to work you must:

  1. Promptly initiate an investigation into the circumstances of the employee’s refusal. This investigation must be done in the presence of the employee and their representative (a union member of the Joint Health and Safety Committee). The employee cannot be assigned alternative work at this stage. He /she must remain in a safe place near their workstation.
  2. Advise Health and Safety Services of the refusal to work. Health and Safety Services will assist by ensuring the work refusal process is followed in accordance with the Act. Health and Safety Services will liaise with Humber’s Joint Health and Safety Committee to ensure that a union member is made available to act as the employee’s representative for the purposes of the investigation. If the work refusal takes place after hours contact Security.
  3. Based on the outcome of the investigation, take action to resolve the work refusal situation. This may mean taking corrective action to rectify an unsafe condition, or if no hazard has been identified, explaining to the employee the reasons why it has been concluded that there is no danger present.
  4. Document the details of the refusal including the name and position of the refusing worker, the date and time of the refusal and the specific reasons given for the refusal to work. Note details related to the investigation, the conclusion(s) reached and action(s) taken. Keep this report on file and submit a copy to Health and Safety Services. 

Second Stage Refusal Investigation:

If the situation has not been resolved and the employee continues to refuse to work:

  1. Request that Health and Safety Services notify the Ministry of Labour. Record the reasons the employee has given for continuing to refuse to work. Once   notified of a work refusal, an Inspector must investigate the refusal to work in consultation with you, or a management designate (employer), the employee and their representative. Following the investigation the Inspector must decide whether the machine, device or thing or the workplace or part thereof is likely to endanger the employee or another person. The Inspector must provide his / her decision in writing.
  2. Pending the investigation and decision of the Inspector, you may assign reasonable alternative work or give other direction to the employee as long as it is not in contravention of the employee’s Collective Agreement. Otherwise the employee must remain at a safe place near the workstation. No other employee may be assigned the work that is being investigated unless he / she has been advised of the work refusal and reasons for it, in the presence of the union member of the Joint Health and Safety Committee. 
  3. Ensure that action is taken to resolve the work refusal situation, based on the outcome of the Inspector’s investigation. If the Inspector has issued orders regarding a hazard or matter of non-compliance, it will be necessary to comply with the direction or orders given before the employee may return to work.
  4. Complete your documentation of the investigation, the conclusion(s) reached and action(s) taken. Keep this report on file and submit a copy to Health and Safety Services.

C. Health and Safety Services  

Health and Safety Services will provide assistance in a work refusal situation by:

  1. Monitoring the situation to ensure the work refusal process is followed in accordance with the Act.
  2. Liaising with Humber’s Joint Health and Safety Committee to ensure that a union member (a certified member if possible) of the Committee is made available to participate in the work refusal process, as required by the Act. This will be done in a manner agreed to by the Committee.
  3. Maintaining records of all reports pertaining to work refusal situations at Humber, including those of the supervisor / manager and the Ministry of Labour. Ensuring that appropriate reports are provided to the Joint Health and Safety Committee.  

D. Joint Health and Safety Committee

The Joint Health and Safety Committee has the right to:

  1. Participate in the work refusal process by having a union member of the Committee be present at work refusal investigations (both first and second stage) to act as the employee’s representative. If possible, the union member should be a certified member.
  2. The union member may report back to the Committee on the particulars of, and outcome to, work refusal situations.