Work Refusal

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Under the Occupational Health and Safety (OHS) Act, employers and workers share the responsibility for ensuring a healthy and safe workplace. Both employers and workers are responsible for their own safety and for the safety of co-workers. This shared responsibility for health and safety is known as the Internal Responsibility System.

In addition to the right to know about health and safety issues and the right to participate in decisions that could affect their health and safety, workers also have the right to refuse to work when they believe a task or situation is dangerous to them or others in the workplace.

Exercising the right to refuse work may be the outcome of a failure to ensure a workers’ rights to know and participate. Having a clearly defined right to refuse process helps to ensure that health and safety concerns are assessed and corrected when necessary. This process includes steps to escalate concerns to higher levels of authority, if necessary, for resolution. Employers and workers must follow the process.

Employer duties

Employers must:

  • Continue to pay a worker who has refused to do dangerous work and may reassign them to do other similar work until the situation is remedied. [OHS Act, S. 29(3) and (4)]
  • Pay a worker, who has refused to do dangerous work, and who has not been reassigned to do other work if the worker’s refusal is justified. [OHS Act, S. 29(5)]
  • Not retaliate, or threaten to retaliate, or penalize a worker who follows applicable health and safety laws in the workplace. [OHS Act, S. 30(1)]
  • Follow orders given by an OHS Safety Officer. [OHS Act, S. 31(4)]

Supervisor’s role in refusal to work

Workers must report their refusal to work concerns immediately to their supervisors (or their employer if they do not have a supervisor). A refusal to work must be based on a reasonable belief that their health and safety or that of another person is in danger if they continue working. [OHS Act, S. 28(1) and (2)]

  • The supervisor must investigate the claim promptly in the presence of the worker who made the claim [OHS Act, S. 28(2)] and cannot ask another worker to do the work, without informing them about the work refusal and the nature of the work refusal. [OHS Act, S. 29(2)]
  • After investigating the claim, the supervisor must: [OHS Act, S. 28(3) and (4)]
    • take appropriate actions, or recommend actions to the employer if the supervisor agrees there is a danger to worker’s health and safety; or
    • instruct the worker on how to safely return to work if the supervisor finds there is no danger to the worker’s health and safety.

Worker duties

Workers must:

  • Report any dangerous task or situation to a supervisor immediately and go to a safe place at the workplace. [OHS Act, S. 28(2)]
  • Be aware that if workers are reassigned to do other similar work until the situation is remedied, they must cooperate if the reassignment complies with any applicable collective agreement. [OHS Act, S. 29(1)(3) and (4)]
  • Be aware that if they are not satisfied with the corrective action taken by the employer, they may refer the concern to the joint occupational safety and health (JOSH) committee or representative or, if no JOSH committee or representative is in the workplace, to an occupational health and safety officer. [OHS Act, S. 28(5)]
  • Be aware that if the worker is not satisfied with the corrective action taken by the JOSH committee or representative, they may refer the issue to an occupational health and safety officer. [OHS Act, S. 28(9)]
  • Return to their work when it is safe and when instructed by the supervisor, employer, JOSH committee or representative or, an occupational health and safety officer. [OHS Act, S. 28(4), (8) and (12)] [OHS Act, S. 29(1)]
  • Stay in the workplace during normal hours of work while an investigation is in progress. [OHS Act, S. 28(13)]
  • Be aware that if a work refusal is considered frivolous, they will not receive wages and benefits during the work refusal period. [OHS Act, S. 29(6)]
  • Be aware that if the employer or union has retaliated, threatened to retaliate, or penalized them because they exercised their rights or follow applicable health and safety laws in the workplace, they may file a complaint with the Workers Compensation Board (WCB) or request arbitration according to their collective agreement if applicable.

Joint occupational safety and health (JOSH) committee or representative duties

The JOSH committee or representative must:

  • Promptly investigate any unresolved work refusal situation referred to them by a worker. [OHS Act, S. 28(6)]
  • Recommend appropriate corrective action to the employer when they believe the situation is a danger to the worker or others in the workplace. [OHS Act, S. 28 (7)]
  • Advise the worker to resume doing the work if the JOSH committee or representative believes the work is safe. [OHS Act, S. 28(8)]

Union duties

The union must:

The internal responsibility system is the underlying philosophy of the occupational health and safety legislation in all Canadian jurisdictions. Its foundation is that all in the workplace - both workers and employers - are responsible for their own safety and for the safety of co-workers. 

OCCUPATIONAL HEALTH AND SAFETY ACT
R.S.P.E.I. 1988, c. O-1.01

Section 28 Right to refuse work

28. (1) A worker may refuse to do an act at the worker's workplace where the worker has reasonable grounds for believing that the act is likely to endanger the worker's occupational health or safety or the occupational health and safety of another worker.

(2) A worker who has reason to believe that an act is likely to endanger the worker's occupational health and safety or the occupational health or safety of another worker shall immediately report the concern to the worker's supervisor, who shall promptly investigate the situation in the presence of the worker.

(3) Where a supervisor finds that the worker has reasonable grounds for believing that an act is likely to endanger the worker's occupational health or safety or the occupational health or safety of another worker, the supervisor shall take appropriate remedial action or recommend appropriate remedial action to the employer.

(4) Where a supervisor finds the worker does not have reasonable grounds for believing that an act is likely to endanger the worker's occupational health or safety or the occupational health or safety of another worker, the supervisor shall advise the worker to do that act.

(5) Where a worker has made a report under subsection (2) and the matter has not been resolved to the worker's satisfaction, the worker shall refer the matter to a committee or representative or, where there is no committee or representative, to an officer.

(6) On receipt of a referral under subsection (5), the committee, representative or officer shall promptly investigate the situation.

(7) Where a committee or representative finds that the worker has reasonable grounds for believing that an act is likely to endanger the worker's occupational health or safety or the occupational health or safety of another worker, the committee or representative shall recommend appropriate remedial action to the employer.

(8) Where a committee or representative finds that the worker does not have reasonable grounds for believing that an act is likely to endanger the worker's occupational health or safety or the occupational health or safety of another worker, the committee or representative shall advise the worker to do that act.

(9) Where a matter has been referred to a committee or representative under subsection (5), and the matter is not resolved to the satisfaction of the worker, the worker may refer the matter to an officer.

(10) On receipt of a referral under subsection (5) or (9), an officer shall promptly investigate the situation and make the officer's findings known in writing, as soon as is practicable, to the employer, the worker and the committee or representative, if any, as to whether the worker has reasonable grounds for believing that an act is likely to endanger the worker's occupational health or safety or the occupational health or safety of another worker.

(11) Where, on a referral under subsection (5) or (9), an officer finds that a worker has reasonable grounds for believing that an act is likely to endanger the worker's occupational health or safety or the occupational health or safety of another worker, the officer shall order remedial action to be taken by the employer.

(12) Where, on a referral under subsection (5) or (9), an officer finds that a worker does not have reasonable grounds for believing that an act is likely to endanger the worker's occupational health or safety or the occupational health or safety of another worker, the officer shall advise the worker to do that act.

(13) Pending an investigation under this section, the worker shall remain available at the workplace during the worker's normal working hours.

Section 29 Protection of worker's right of refusal

29. (1) A worker's right under subsection 28(1) to refuse to do an act is protected

(a) if the worker has reported the concern to the worker's supervisor under subsection 28(2),

(i) until remedial action recommended by the supervisor under subsection 28(3) is taken by the supervisor or employer to the worker's satisfaction, or

(ii) until the supervisor has advised the worker under subsection 28(4) to do that act;

(b) if the worker has referred the matter to a committee or representative under subsection 28(5),

(i) until remedial action recommended by the committee or representative under subsection 28(7) is taken by the employer to the worker's satisfaction, or

(ii) until the committee or representative has advised the worker under subsection 28(8) to do that act; and

(c) if the worker has referred the matter to an officer under section 28(5),

(i) until remedial action ordered by the officer under subsection 28(11) is taken by the employer to the officer's satisfaction, or

(ii) until the officer has advised the worker under subsection 28(12) to do that act.

(2) Where a worker has refused to do an act at the worker's workplace under subsection 28(1), the employer shall not assign another worker to perform that act unless that other worker has been advised by the employer of the refusal and the reasons therefor and of the worker's rights under this Act.

(3) Subject to subsection (4), where a worker has refused to do an act under subsection 28(1) and the worker's right to refuse is protected under subsection (1), the worker's employer may reassign the worker temporarily to perform other acts or to perform other work that is reasonably equivalent to the acts or work the worker normally performs and the employer shall pay the worker the same wages and grant the worker the same benefits as the worker would have received if he or she had not refused to do the act.

(4) Where a collective agreement is in force, a reassignment referred to in subsection (3) shall be made in accordance with the collective agreement.

(5) Where a worker has reasonably refused to do an act under subsection 28(1), the worker's right to refuse is protected under subsection (1) and the worker has not been reassigned to perform other acts or to perform other work under subsection (3), the employer shall pay the worker the same wages and grant the worker the same benefits as the worker would have received if he or she had not refused to do the act, if the worker's refusal is upheld.

(6) Where it is determined that the worker's refusal was for frivolous reasons, the worker shall not be entitled to wages and benefits for the applicable time period.

Section 30 Discriminatory action

30. (1) No employer or union shall

(a) take discriminatory action against a worker;

(b) threaten to take discriminatory action against a worker;

(c) except as provided in subsection 29(6), impose a penalty on a worker; or

(d) intimidate or coerce a worker

because the worker has sought the enforcement of this Act, the regulations or an order made in accordance with this Act or the regulations, or has acted in compliance with this Act, the regulations or an order made in accordance with this Act or the regulations.

(2) A reassignment under subsection 29(3) is not discriminatory action under this section.

Section 31 Settlement by arbitration

31. (1) Where a worker complains that an employer or a union has violated section 30, the worker may have the matter dealt with either by final and binding settlement by arbitration under a collective agreement, if any, or by filing a complaint in writing with the Board.

(2) On receipt of a complaint referred to in subsection (1), the Board shall, having satisfied itself that all required steps to resolve the complaint have been exhausted, refer the complaint to an arbitrator whom the Board shall appoint.

(3) An arbitrator has all the powers of an arbitrator under the Labour Act R.S.P.E.I. 1988, Cap. L-1.

(4) Where an arbitrator finds that the action of an employer or a union contravened subsection 30(1), the arbitrator shall make an order in writing that may include

(a) an order to the employer or union to cease the discriminatory action;

(b) an order to an employer to reinstate the worker to the worker's former employment under the same terms and conditions on which the worker was formerly employed;

(c) an order to the employer to pay to the worker any wages the worker lost because the worker was wrongfully discriminated against; or

(d) an order to the employer or union that a reprimand or other reference to the matter in the employer's or union's records on the worker's conduct be removed.

(5) The arbitrator shall provide a copy of the order and his or her reasons to the Board, to the employer or union and to the worker.

(6) Where

(a) an arbitrator has made an order respecting a party; and

(b) the party has failed to comply with the order,

a person affected by the order may, 14 days after the date of the order or after the date required in the order for compliance with it, whichever is later, file the order with the Registrar of the Supreme Court.

(7) An order filed under subsection (6) shall be entered in the records of the Supreme Court in the same way as a judgment filed under the Judgment and Execution Act R.S.P.E.I. 1988, Cap. J-2, and the order is enforceable as a judgment under that Act.