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This isn’t legal advice and you may wish to review your operations with counsel, however as we anticipate a re-opening of public libraries, wise library boards, CEO’s, HR staff, Health & Safety Committees and unions will review their knowledge of the employment and labour rights inherent in the following:

Part V: Right to refuse or to stop work where health and safety in danger

https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-v-right-refuse-or-stop-work-where-health-and-safety-danger

The right to refuse work

The Occupational Health and Safety Act (OHSA) gives a worker the right to refuse work that he or she believes is unsafe to himself/ herself or another worker. A worker who believes that he or she is endangered by workplace violence may also refuse work.

The Act sets out a specific procedure that must be followed in any work refusal. It is important that workers, employers, supervisors, members of joint health and safety committees (JHSCs) and health and safety representatives understand the procedure for a lawful work refusal.

Procedure for a work refusal

First stage

  1. Worker considers work unsafe.
  2. Worker reports refusal to his/her supervisor or employer. Worker may also wish to advise the worker safety representative and/or management representative. Worker stays in safe place.
  3. Employer or supervisor investigates in the presence of the worker and the worker safety representative.
  4. Either:
    1. Issue resolved. Worker goes back to work.
    2. Issue not resolved. Proceed to the second stage

Second stage

  1. With reasonable grounds to believe work is still unsafe, worker continues to refuse and remains in safe place. Worker or employer or someone representing worker or employer calls MOL.
  2. MOL Inspector investigates in company of worker, safety representative and supervisor or management representative.*
  3. Inspector gives decision to worker, management representative/supervisor and safety representative in writing.
  4. Changes are made if required or ordered. Worker returns to work.

* Pending the MOL investigation:

  • The refusing worker may be offered other work if it doesn’t conflict with a collective agreement
  • Refused work may be offered to another worker, but management must inform the new worker that the offered work is the subject of work refusal. This must be done in the presence of:
    • a member of the joint health and safety committee who represents workers; or
    • a health and safety representative, or
    • a worker who because of his or her knowledge, experience and training is selected by the trade union that represents the worker or, if there is not trade union, by the workers to represent them.

Do all workers have the right to refuse unsafe work?

The right to refuse unsafe work applies to all workers other than specified types of workers in specified circumstances. For further information, please refer to subsections 43(1) and (2) of the Act.

In specified circumstances, the right to refuse unsafe work is limited for:

  • police officers
  • firefighters
  • workers employed in the operation of correctional institutions and similar institutions/facilities
  • health care workers and persons employed in workplaces like hospitals, nursing homes, sanatoriums, homes for the aged, psychiatric institutions, mental health centres or rehabilitation facilities, residential group homes for persons with behavioural or emotional problems or a physical, mental or developmental disability, ambulance services, first aid clinics, licensed laboratories—or in any laundry, food service, power plant or technical service used by one of the above [subsection 43(2)].

When can a worker refuse to work?

A worker can refuse to work if he or she has reason to believe that:

  • 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 [clause 43(3)(a)]
  • the physical condition of the workplace or workstation is likely to endanger himself or herself [clause 43(3)(b)]
  • workplace violence is likely to endanger himself or herself [clause 43(3)(b.1)]
  • 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 [clause 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 the circumstances for the refusal [subsection 43(4)].

The supervisor or employer must investigate the situation immediately, in the presence of the worker and one of the following:

  • a joint health and safety committee member who represents workers, if there is one. If possible, this should be a certified member, or
  • a health and safety representative, in workplaces where there is no joint health and safety committee, or
  • another worker, who, because of knowledge, experience and training, has been chosen by the workers (or by the union) to represent them.

The refusing worker must remain in a safe place that is as near as reasonably possible to his or her workstation, and remain available to the employer or supervisor for the purposes of the investigation, until the investigation is completed [subsection 43(5)]. Although not stated as such in the Act, this interval is informally 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 first stage investigation?

The worker can continue to refuse the work if he or she has reasonable grounds for believing that the circumstances that caused the worker to initially refuse work continue [subsection 43(6)]. At this point, the “second stage” of a work refusal begins.

What happens if a worker continues to refuse to work?

If the worker continues to refuse to work after the completion of the employer’s investigation, the worker, the employer or someone acting on behalf of either the worker or employer must notify a Ministry of Labour, Training and Skills Development inspector. The inspector will come to the workplace to investigate the refusal in consultation with the worker and the employer (or a representative of the employer). If there is a joint health and safety committee member, a worker health and safety representative or a worker selected by the worker’s trade union or, if there is no trade union, by the workers to represent the worker, they will also be consulted as part of the inspector’s investigation [subsection 43(7)].

While waiting for the inspector’s investigation to be completed, the worker must remain in a safe place that is as near as reasonably possible to his or her workstation and available to the inspector for the purposes of the investigation, unless the employer assigns some other reasonable alternative work during normal working hours or gives other directions to the worker where an assignment of reasonable alternative work is not practicable [subsections 43(10) and (10.1)].

The inspector must decide whether the circumstance(s) that led to the work refusal 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 circumstance is not likely to endanger anyone, the refusing worker is expected to return to work. If the inspector finds that the circumstance(s) is likely to endanger the worker or another person, the inspector will typically order the employer to remedy the hazard.

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 committee member who represents workers, or a health and safety representative, or a worker representative chosen because of knowledge, experience and training [subsections 43(11) and (12)].

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

Is a worker paid while refusing to work?

The Ministry is of the view that the worker is 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 the premium rate, whichever is applicable [subsection 43(13)].

Can an employer discipline a worker for refusing to work?

No. The employer is expressly prohibited from penalizing, dismissing, disciplining, suspending or threatening to do any of these things to a worker who has obeyed or sought enforcement of the OHSA [subsection 50(1)]. Please see Part VI of this guide – Reprisals by the employer prohibited – for more information.

The right to stop work

The Occupational Health and Safety Act permits specified persons to stop work in “dangerous circumstances”.

In most cases, it takes both worker and management certified joint health and safety committee members to direct an employer to stop dangerous work (joint stoppage). One must be a certified member representing workers; the other, a certified member representing the employer. In some special cases, a single certified member may have this right. This chapter explains how and when work can be stopped.

Dangerous circumstances

Work can be stopped only in “dangerous circumstances” [subsection 44(1)].

This means a situation in which all of the following apply:

  • the Act or the regulations are being contravened, and
  • the contravention poses a danger or a hazard to a worker, and
  • any delay in controlling the danger or hazard may seriously endanger a worker.

Limitations on the right to stop work

The right to stop work in dangerous circumstances does not apply to workplaces in which police and, firefighters are employed or to correctional institutions [clause 44(2)(a)] or to workplaces in which specified types of health workers are employed and where the work stoppage would directly endanger the life, health or safety of another person [clause 44(2)(b)].

Joint right to stop work

If a certified member of the joint health and safety committee has reason to believe that “dangerous circumstances” exist, he or she may ask a supervisor to investigate. The supervisor must do so promptly and in the presence of the certified member who made the request. This certified member may be one representing either the workers or the employer [subsection 45(1)].

What happens if the certified member has reason to believe that the dangerous circumstances continue to exist?

If the certified member believes that dangerous circumstances still exist after the conclusion of the supervisor’s investigation and any remedial action taken, he or she may ask another certified member (who represents the other workplace party) to investigate [subsection 45(2)]. The second certified member must do so promptly and in the presence of the first certified member [subsection 45(3)].

The second certified member must represent the other workplace party. For example, if the first certified member represents workers, the second must represent the employer.

In prescribed instances, a certified member who represents the constructor or employer but who is not available at the workplace, may designate another person to act for him or her in a work stoppage under section 45 [subsection 45(9)].

What happens if both certified members agree that dangerous circumstances exist?

The certified members can direct the employer to stop the work or to stop using any part of the workplace or any equipment, machinery, tools, etc. [subsection 45(4)].

The employer must comply with this direction immediately and must ensure that compliance is achieved in a way that does not endanger anyone [subsection 45(5)].

After taking steps to remedy the dangerous circumstances, the employer may request the certified members of the joint health and safety committee who issued the stop work direction, or a Ministry of Labour, Training and Skills Development inspector, to cancel it [subsection 45(7)]. Only the certified members who issued the direction or a Ministry of Labour, Training and Skills Development inspector may cancel it [subsection 45(8)].

What if the certified members do not agree with each other that dangerous circumstances exist?

If the certified members disagree, either member may ask a ministry inspector to investigate. The Act requires the inspector to investigate and provide both certified members with his or her written decision [subsection 45(6)].

Unilateral work stoppage

Application to the Ontario Labour Relations Board

If any certified member in the workplace, or a Ministry of Labour, Training and Skills Development inspector has reason to believe that the procedure for joint stoppage of work will not be sufficient to protect the workers from serious risk to their health or safety, he or she may apply to the Ontario Labour Relations Board (OLRB) for a specified declaration or recommendation against the employer [subsection 46(1)], which are described in greater detail below.

Role of the OLRB

In this type of application, the OLRB, using prescribed criteria, must determine if the employer has failed to protect the health and safety of workers. The criteria to be used by the OLRB are prescribed in the O. Reg. 243/95, Criteria To Be Used And Other Matters To Be Considered By The Board Under Subsection 46 (6) of Act [subsection 46(6)].

If the OLRB finds that the procedure for joint stoppage of work is not sufficient to protect the workers, it may do one or both of the following:

  • declare that the employer is subject to the procedure for individual stoppage of dangerous work (explained below) for a specified period [clause 46(5)(a)]
  • recommend to the Minister that an inspector be assigned, for a specified period, to oversee the health and safety practices of the employer. The inspector can be assigned on a part time or full time basis for a specified period of time [clause 46(5)(b)].

The decision of the OLRB on an application is final [subsection 46(7)].

Procedure for the unilateral right to stop dangerous work

This procedure applies to a constructor or employer against whom the OLRB has issued a declaration under section 46 of the Act. It also applies to an employer who has advised the joint health and safety committee, in writing, that he or she voluntarily adopts the following procedure [subsection 47(1)].

If a certified member finds that dangerous circumstances exist, he or she can direct the employer to stop work or to stop using any part of the workplace or any equipment, machinery, tools, etc. [subsection 47(2)].

The employer must comply immediately and must achieve compliance in a way that does not endanger anyone [subsection 47(3)].

After stopping the work, the constructor or employer must promptly investigate in the presence of the certified member [subsection 47(4)].

After taking steps to remedy the dangerous circumstances, the employer can ask the certified member, or an inspector, to cancel the direction [subsection 47(6)]. The certified member, who made the direction or an inspector may cancel it [subsection 47(7)].

A certified member who receives a complaint that dangerous circumstances exist is entitled to investigate the complaint and to be paid for the time spent in exercising powers and performing duties during work stoppages.

Responsible use of the right to stop work

Where a constructor, employer, worker in the workplace or representative of a trade union in the workplace has reasonable grounds to believe that the certified member recklessly or in bad faith exercised, or failed to exercise powers under section 45 or section 47 to stop work in dangerous circumstances, he or she may file a complaint with the OLRB The complaint must be filed within 30 days of the event to which the complaint relates. The Minister may be a party to these proceedings before the OLRB.

The Board is required to make a decision in respect of the complaint and may make any order that it considers appropriate (including the decertification of a certified member.)

The decision of the OLRB is final.”

“Part VI: Reprisals by the employer prohibited

The Occupational Health and Safety Act (OHSA) prohibits employers from penalizing workers in reprisal for obeying the law or exercising their rights.

Under section 50 of the OHSA, an employer cannot

  • dismiss (or threaten to dismiss) a worker
  • discipline or suspend a worker (or threaten to do so)
  • impose (or threaten to impose) any penalty upon a worker, or
  • intimidate or coerce a worker…

because a worker has

  • followed the OHSA and regulations
  • exercised rights under the OHSA, including the right to refuse unsafe work
  • asked the employer to follow the OHSA and regulations.

worker also cannot be penalized for

  • providing information to a Ministry of Labour inspector
  • following a Ministry of Labour inspector’s order, or
  • testifying at a hearing about OHSA enforcement
    • in court
    • before the Ontario Labour Relations Board
    • before the Human Rights Tribunal of Ontario or similar organization
    • at a coroner’s inquest
    • at a grievance arbitration, and
    • in certain other hearings.

Workers

A worker who believes that the employer has reprised against him or her may file a complaint with the Ontario Labour Relations Board (OLRB). A unionized worker may choose to ask the union to file a grievance under the collective agreement or to seek its help in filing a complaint directly on the worker’s behalf with the OLRB.

Alternatively, a worker claiming to have been fired in an OHSA-related reprisal may consent to having a Ministry of Labour inspector refer the reprisal allegation to the OLRB, if

  • the allegation has not already been dealt with by arbitration, and
  • the worker has not filed a complaint to the OLRB.

The inspector will also provide copies of the referral to the employer, trade union (if any) and other organizations affected by the alleged reprisal. However, the Ministry of Labour will not act as the worker’s representative.

The Ministry of Labour will also investigate the health and safety concerns related to a reprisal complaint or referral.

The OLRB can look into a worker’s complaint or a referral from the Ministry of Labour and try to mediate a settlement between the workplace parties. If a settlement cannot be reached, the OLRB may hold a consultation or hearing. The OLRB may make orders to

  • remove or change any penalty the employer may have imposed
  • reinstate/rehire the worker, and/or
  • compensate the worker for related losses.

The OLRB will provide forms for filing reprisal complaints.

The Office of the Worker Adviser (OWA) or the Toronto Workers’ Health & Safety Legal Clinic can provide workers with free advice on filing complaints and representation at mediations and hearings before the OLRB.

Employers

If there is an allegation of reprisal before the OLRB, it’s up to the employer to refute it. The Office of the Employer Adviser (OEA) can provide free assistance and representation at mediations and hearings before the OLRB to employers with fewer than 50 employees. Also, employers can contact the Law Society of Upper Canada, which will put them in touch with a lawyer who may provide a free initial consultation.

For information resources related to reprisals refer to Appendix C.