Handle With Care: A step-by-step guide to work refusals

The right to refuse unsafe work, without fear of reprisal, is one of the most fundamental employee rights under occupational health and safety legislation. Through discussions and interactive scenarios, Lancaster's experts will clarify the roles and responsibilities of employees, employers, unions, and health and safety inspectors when a refusal occurs. Topics to be addressed include:

• Understanding who can refuse work and assessing "danger": Which workers are subject to statutory limits on their right to refuse work? What is the nature of these restrictions? Where statutes limit the right to refuse dangerous work that is inherent in a job or a normal condition of employment, who decides whether the danger is inherent or a normal condition? Is a Ministry inspector obligated to investigate such complaints? May supervisors refuse unsafe work? What type of danger must be present to trigger an employee's right to refuse unsafe work? Must the danger be immediate? What degree of likelihood that a work condition will lead to injury is required to justify a work refusal? How have recent amendments to the Canada Labour Code changed the definition of danger for federally-regulated workplaces?
• Following proper investigatory procedures: What are the investigative steps mandated by provincial and federal legislation? Who should participate in the employer's initial investigation? At what point should an employee health and safety representative become involved? In workplaces that have a joint health and safety committee, is there a requirement that investigations be conducted jointly with the committee? What are some best practices to implement, and common pitfalls to avoid, in investigating work refusals? What type of evidence should be collected and how? If interviews are required, who is entitled to attend? Can/should a refusing worker be offered alternative work while the investigation is ongoing? Can refused work be offered to another worker pending the outcome of the investigation?
• Clarifying the powers of Ministry inspectors: What powers are given to provincial and federal inspectors investigating work refusals? What interim measures can an inspector order? Can these be appealed?
• Assessing the legitimacy of refusals: When will harassment or abusive behaviour by co-workers or customers be found to constitute a "danger" for the purposes of occupational health and safety legislation? Can stress constitute a hazardous condition? How can legitimate work refusals be distinguished from situations in which workers use refusals as an illegal strike? If an employer considers a refusal to be a continuation of a previous refusal in which no danger was found, must it still conduct an investigation?
• Avoiding reprisals: What protection is provided to an employee who may be a victim of reprisal? How clearly must an employee express concern about a health and safety issue in order to engage the statutory protection from reprisal? Will a board ever impute to an employer knowledge of an employee's health and safety concerns? Can being snubbed by management constitute a reprisal within the meaning of legislation? Can the threat of discipline not actually imposed constitute an illegal reprisal for refusal to work?
• Considering procedural issues: When will a board exercise its discretion to inquire into a complaint of reprisal? When will a board defer consideration of a reprisal complaint on the basis it would be more appropriately dealt with in another forum, such as in a proceeding under the Human Rights Code or through the grievance process?

MATERIALS
Includes materials, with case summaries and analyses, prepared by Lancaster's legal staff.