The Ontario Occupational Health and Safety Act (“OHSA”) provides workers with a number of rights, including the right to refuse work that is “likely to endanger” the worker.[1] When a work refusal occurs there are a number of procedures outlined in the legislation that must be followed and, in some circumstances, an inspector from the Ministry of Labour may be required to attend at the workplace to determine whether, in fact, the work could have been performed safely.
When Can You Refuse Unsafe Work?
Determining whether or not a work refusal is reasonable in the circumstances can sometimes be challenging. The right to refuse unsafe work policy & legislation provides no guidance as to what is meant by the phrase “likely to endanger”, and there have been few cases unpacking the phrase. However, it is clear that there must be some probability that a danger will arise, and something more than its mere possibility. Further, there must be a substantial risk to a worker’s health and safety.[2]
Rights and Responsibilities of Employers for Work Refusals
When determining how to respond to a work refusal, employers must remember that the OHSA prohibits employers from taking any action against a worker as a reprisal for that worker attempting to exercise his or her rights under the OHSA, including refusing unsafe work.
However, an employee can be disciplined for unreasonably refusing to work. For example, as recently demonstrated in Hamilton (City of) v Canadian Union of Public Workers, Local 5167, 2016 CanLII 9065, a worker cannot use the OHSA’s work refusal provisions to simply avoid performing undesirable work. In that case, the City of Hamilton worker was responsible for various maintenance tasks including cutting grass and picking up trash. While on modified duties, the worker refused to work picking up trash due to the fact that his truck did not have an air-ride seat which he said was required by his work restrictions. After the worker failed to attend at work, he was suspended from duties.
During the subsequent arbitration, the arbitrator held that the work refusal was not based on an honestly held belief that the worker’s health or safety was in jeopardy, nor was it objectively reasonable. Among other things, the worker had not contacted the Ministry of Labour until two months after the alleged work refusal, and after the WSIB had determined that the work that he refused was appropriate given his restrictions. Also, the worker had frequently been assigned a vehicle without air-ride seats in the past and had not objected. As a result, the arbitrator found that the work refusal was motivated by the worker’s dislike of the work assignment rather than fear for his health and safety and upheld the suspension.
Take Home Points
Where a worker engages their right to refuse work, employers must investigate the situation in the presence of the worker (and the worker safety representative) on the assumption that the refusal is made in good faith. Discuss the situation with the worker and attempt to resolve the situation (if possible).
If an employer suspects that the basis of the work refusal is unreasonable (i.e. it is not probable that a danger will arise, there is no substantial health and safety risk, etc.), the employer should carefully document the surrounding circumstances and the basis for its opinion, and consider contacting the Ministry of Labour for an assessment. Although there are certainly risks associated with inviting the Ministry into the workplace, doing so may avoid future litigation in the event that the employer disciplines the employee for failing to perform work and is the subject of a reprisal complaint or grievance.
[1] Note: a worker may not refuse to perform work where the danger is inherent in the worker’s work or is a normal condition of the worker’s employment; or when the worker’s refusal to work would directly endanger the life, health or safety of another person.
[2] Hardwall Construction Ltd., [2011] O.O.H.S.A.D. No. 60