Today’s blog post is a post from a guest bloggers, Terry Penney (see contact information at the end of the post)
The definition of danger reads as follows:
“any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”
Amendments to the Canada Labour Code impact the right to refuse dangerous work the NEW LIBERAL GOVERNMENT SAID THEY WOULD REPEAL THESE CHANGES!!!!
Refusal of dangerous work
As it relates to an employee’s right to refuse dangerous work, there have been four key changes to the definition of “danger” under the code.
First, under the prior definition of “danger”, an employee could refuse work which posed an “existing or potential” hazard or condition. The “existing or potential” qualifiers have been struck from the definition. Now an employee can only refuse to perform work in the face of present hazards or conditions.
Second, the old definition permitted an employee to refuse to work in respect of a “current or future activity.” The “current or future” qualifiers have been struck, so that an employee must actually be engaged (or ordered to engage) in the alleged dangerous activity at the time the work refusal is made.
Third, prior to the amendments an employee could refuse work if he or she reasonably expected the activity would cause “injury or illness.” Now, an employee must meet the higher threshold of demonstrating he or she reasonably expects the activity would cause “an imminent or serious threat” to “life or health.”
The right to refuse dangerous work
Any employee subject provincial or federal legislation has the right to refuse dangerous work as long as they have reasonable cause to believe that it presents a danger. Specifically the Code states that an employee may refuse in the following circumstances:
- to use or operate a machine that constitutes a danger to the employee or to another employee;
- to work in a place;
- to perform an activity that constitutes a danger to the employee or to another employee.
The HEALTH AND SAFETY LEGISLATION contains certain exceptions regarding the right to refuse dangerous work. These exceptions include: if the refusal puts the life, health or safety of another person directly in danger; or, the danger in question is a normal condition of employment.
An employee wishing to exercise the right to refuse dangerous work shall immediately report the dangerous situation to the employer. If more than one employee has made a report of a similar nature, those employees may designate one employee from among themselves to represent them during the work place committee’s or representative’s investigation.
The employee shall also specify to the employer whether he or she intends to pursue the matter under the Code or under a collective agreement, when applicable, to deal with the refusal. The employee’s decision cannot be changed unless both the employee and the employer agree to do so. If the employee decides to exercise recourse under the collective agreement, the Minister will not intervene.
YOU CANT CRY WOLF PETER!
Unchanged by the amendments is the fact an employee may be subject to discipline if he or she willfully abuses his or her right to refuse dangerous work. It has been held that a purported work refusal is not an appropriate means of generally challenging an employer’s policies or procedures or to criticize a training program. In addition, an employee (or group of employees) should not utilize the right to refuse unsafe work as a way to gain an advantage in a collective bargaining process.
While discipline is permitted in appropriate circumstances, the code places specific requirements on an employer who issues discipline in response to a work refusal. First, discipline cannot be issued until the investigations and any appeals from those investigations have taken place. Second, at the employee’s request, an employer must provide written reasons for the disciplinary action taken.
Although the recent amendments to the code have not changed the provisions relating to disciplinary action, the narrowed definition of dangerous work may assist employers by removing vague and speculative words such as “potential” or “future” harm.
As a result of these amendments it is important that federally regulated employers ensure their supervisors and managers are aware of the new rules and trained in how to respond to a work refusal. Employers should also review and update their internal investigation protocols and discipline assessment tools to ensure compliance with the new requirements.
REMEMBER legislation holds employers responsible to protect employee health and safety. Enforcement is carried out by inspectors from the government department responsible for health and safety in each jurisdiction. In some serious cases, charges may also be laid by police or crown attorneys under Section 217.1 of the Canada Criminal Code (also known as “Bill C-45”). This section imposes a legal duty on employers and those who direct work to take reasonable measures to protect employees and public safety. If this duty is “wantonly” or recklessly disregarded and bodily harm or death results, an organization or individual could be charged with criminal negligence.