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6. The Right to Refuse Work

The Occupational Health and Safety Act (the Act) gives a worker the right to refuse work that he or she believes is unsafe.

The Act sets out a specific procedure that must be followed in a work refusal. It is important that workers, employers, supervisors, worker health and safety representatives and joint health and safety committee members understand this procedure.

Do all workers on farming operations have the right to refuse unsafe work?

Yes.

When can a worker refuse to work?

A worker can refuse to work if he or she has reason to believe that one or more of the following is true:

  • Any machine, equipment or tool that the worker is using or is told to use is likely to endanger himself or herself or another worker [section 43(3)(a)].
  • The physical condition of the workplace or work station is likely to endanger the worker [section 43(3)(b)].
  • Any machine, equipment or tool that the worker is using, or the physical condition of the workplace, contravenes the Act or regulations and is likely to endanger himself or herself or another worker [section 43(3)(c)].

What happens when a worker refuses unsafe work?

The worker must immediately tell the supervisor or employer that the work is being refused and explain why [section 43(4)].

The supervisor or employer must investigate the situation immediately, in the presence of the worker and, if there is such, one of the following people:

  • a joint health and safety committee member who represents workers, if there is one. If possible, this should be a certified member, if one is required; or
  • a worker health and safety representative, in workplaces where there is no joint committee; or
  • another worker, who, because of knowledge, experience and training, has been chosen by the workers to represent them.
The refusing worker must remain in a safe place near the work station until the investigation is completed [section 43(5)]. This interval is known as the "first stage" of a work refusal. If the situation is resolved at this point, the worker will return to work.

What if the refusing worker is not satisfied with the result of the investigation?

The worker can continue to refuse the work if he or she has reasonable grounds for believing that the work continues to be unsafe [section 43(6)]. At this point, the "second stage" of a work refusal begins.[ 1 ]

What happens if a worker continues to refuse to work?

The worker, the employer or someone acting on behalf of either the worker or employer must notify a Ministry of Labour inspector. The inspector will come to the workplace to investigate the refusal by consulting with the worker and the employer (or a representative of the employer). If there is a worker committee member, a worker health and safety representative or a worker selected by the workers to represent the worker, they will also be consulted as part of the inspector's investigation [section 43(6)].

While waiting for the inspector's investigation to be completed, the worker must remain in a safe place near the work station, unless the employer assigns some other reasonable work during normal working hours. If no such work exists, the employer can give other directions to the worker [section 43(10)].

The inspector must decide whether the work is likely to endanger the worker or another person. The inspector's decision must be given, in writing, to the worker, the employer, and the worker representative, if there is one. If the inspector finds that the work is not likely to endanger anyone, the refusing worker is expected to return to work [sections 43(8) and (9)].

Can another worker be asked to do the work that was refused?

Yes. While waiting for the inspector to investigate and give a decision on the refusal, the employer or supervisor can ask another worker to do the work that was refused. The second worker must be told that the work was refused and why. This must be done in the presence of a joint health and safety committee member who represents workers, or a health and safety representative if there is one, or a worker representative chosen because of knowledge, experience and training. [sections 43(11) and (12)].

The second worker has the same right to refuse as the first worker.

Is a worker paid while refusing to work?

Although the Act does not cover this point, the Ontario Labour Relations Board has ruled that a refusing worker is considered to be at work during the first stage of a work refusal and is entitled to be paid at his or her appropriate rate.

A person acting as a worker representative during a work refusal is paid at either the regular or, where applicable, their premium rate [section 43(13)].

Can an employer discipline or otherwise penalize a worker for refusing to work?

No. A worker has the duty to work in accordance with the Act and the regulations and has the right to seek their enforcement. The employer is not allowed to dismiss, discipline, suspend or penalize a worker in any other way, or threaten to do any of these things to a worker who has acted in compliance with the law [section 50(1)]. This also applies if a worker has given evidence at an inquest or a prosecution under the Act or the regulations.

However, this provision does not apply if the work refusal was made in bad faith, or if the worker continues to refuse after the Ministry of Labour inspector finds that the work is not likely to endanger the worker.

What if an employer disciplines or otherwise penalizes a worker for complying with the Act and refusing to work?

Any worker who believes he or she was penalized by the employer because he or she exercised the right to refuse dangerous work may file a complaint with the Ontario Labour Relations Board (OLRB).

The OLRB can also be contacted at 416-326-7500 or toll-free at 1 877 339-3335, 505 University Ave, 2nd floor, Toronto, Ontario, M5G 2P1.

Before doing the above, the worker or the employer has the option of contacting the Ministry of Labour, and an inspector shall respond. There is no requirement to contact the ministry.

If the complaint is taken to the OLRB, the employer must prove that the discipline or other penalty imposed on the worker was the result of an improper refusal [section 50(5)]. The OLRB has the power to remove or change any penalty imposed on the worker [section 50(7)].

[ 1 ] "Reasonable grounds" for continuing to refuse means that the worker has some objective information that makes him or her believe the work is still unsafe. The worker does not have to be correct in his or her knowledge or belief. For example, the refusing worker may have been told by other workers who have used a tractor that the brakes sometimes fail.

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