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Health and Safety

Q

How does an employer respond to a work refusal by an employee?

A

Employees have a right to refuse work that is unsafe if it is likely to endanger them, or another employee. This right is an important factor in the internal responsibility system under which employers and employees share the responsibility for health and safety in the workplace. Occupational health and safety legislation gives all employees the right to refuse unsafe work, but limits that right for certain public sector employees such as police, firefighters and hospital staff.

An employee must report the existence of any hazards found in the workplace, and the employee who refuses unsafe work is required to promptly report the circumstances of the refusal to his or her employer or supervisor. The employer must make the distinction between an employee reporting a hazard that raises health and safety concerns, and when that employee is refusing work.

Dismissal or the threat to dismiss, discipline or suspend, intimidate or coerce the employee or impose a penalty upon the employee is not the way for an employer to respond. Under no circumstance should an employee's concern be ignored or dismissed.

An employer should respond by directly asking the employee if he or she is refusing work, and why. If this is the case, the employer should immediately investigate in the presence of the employee and health and safety committee or representative. It does not matter whether the employee was actually in danger; all the employee has to do is believe he or she was. After the investigation, the employer and employee may come to an agreement to resolve the matter, and the employee can resume work. The employer should keep a record of the incident and conclusion.

In the event that the employee disagrees with the decision, and has reasonable grounds to believe that the work will endanger him or her or another employee, the employee is allowed to continue to refuse work. The employee can be assigned to reasonable alternative work or given other directions while pending investigation and decision. The employer, the employee, or the health and safety committee or representative will contact an inspector from the Ministry or Department of Labour, occupational health and safety division. The investigation will be held in presence of all parties concerned and a written decision as to whether or not the work is likely to endanger the employee or another employee is given as soon as possible. If the decision of the inspector favours the employee, the employer will be required by order to make changes to the workplace or to take steps to rectify problems before the work is performed. The employer or employee may appeal the inspector's decision. The employer should take careful notes of all the stages of a work refusal including:

  • When and by whom the ministry or department was contacted
  • The reasons provided by the employee for continuing to refuse work
  • Who at the ministry or department received the notification call
  • Details respecting any reasonable alternative work offered to the employee or other directions given
  • Employers should establish clear policies and procedures for work refusals in the workplace.
  • Approach the employee should take in the event of a work refusal
  • The work refusal process and steps to be followed as well as circumstances under which an employee can be reassigned, sent home, or disciplined
  • Ensure that those responsible for responding to a work refusal have a clear and thorough understanding of the work refusal process and steps to be followed
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Please Note: Any information provided in response to an HR or payroll question is not legal advice or a legal opinion. To obtain legal advice or a legal opinion, consult a lawyer.

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