3.1 Grounds for a Work Refusal
The “right to refuse”, while entrenched in legislation, should not be the primary mechanismto solve workplace safety concerns. A safety related work refusal must be made based on a reasonable belief that the work may cause injury or death to the Worker or another Worker.
The Occupational Health and Safety Act (OHSA) provides each worker the right to refuse work or to do particular work where he or she has reason to believe that:
- any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker
- the physical condition of the workplace or part thereof in which he or she works or is to work is likely to endanger himself or herself
- workplace violence is likely to endanger himself or herself, or
- any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of the OHSA or the regulations, and such contravention is likely to endanger himself, herself or another worker.
When the right does not apply. As per O. Reg 857, the right to refuse or to stop work does not apply to a teacher where the circumstances are such that the life, health or safety of a student is in imminent jeopardy.
3.2 Wages during an investigation.
When a worker exercises the right to refuse work they shall not be penalized for exercising a right under the OHSA. This means that workers who refuse to work must continue to be paid normal wages while the matter is being investigated by the DDSB or the Ministry of Labour, Immigration, Training and Skills Development (MLTSD).
3.3 Individual reporting.
The right to refuse work is an individual rather than a collective right. When a number of workers believe the work is unsafe, each worker must report the matter individually.
3.4 Responsibility to Investigate
The Occupational Health and Safety Act outlines the work refusal process with some exactness. There are potentially two stages, and both worker and supervisor must do or not do various things at each stage. The steps have been outlined in Appendix A: Work Refusal Process.
3.5 Employee Protection from Reprisal
Supervisors must take great care that they do not penalize any worker for exercising or seeking to exercise their rights under the Act. If a worker has acted in compliance with the Act, its regulations or an order made under them, the employer (or any person acting on behalf of the employer) may not, because the worker so acted:
- dismiss or threaten to dismiss the worker;
- discipline or threaten to discipline the worker;
- impose any penalty on the worker;
- intimidate or coerce a worker.
However, a worker who does not exercise the right in good faith in a way that complies with the OHSA, or if a worker continues to refuse after the Ministry of Labour inspector finds that the work is not likely to endanger the worker, there may be progressive discipline applied up to and including termination of employment.
If a worker complains that the employer (or any person acting on behalf of the employer) has improperly taken any of these actions, he or she may file a grievance or make a complaint to the Ontario Labour Relations Board.
3.7 Documentation
Supervisors are to retain all documentation resulting from Safety-Related Refusal to Work. It is recommended that the documentation include the following information:
- Name of staff who is refusing work, date/time refusal started
- Who is part of the work refusal process (worker, JHSC work representative,H&S staff, etc)
- Reasons provided for the work refusal
- Name of the alternate staff assigned to the work of the refusing worker andconfirmation that they were made aware of the work refusal in the presence of aworker representative
- Note any information brought up during the work refusal, including items youmay not have been aware of
- Resolution of work refusal- what next steps/solutions to be put in place toresolve the work refusal
- Date/time refusal resolve
