Section 128. of the Canada Labour Code Part II gives workers the right to refuse unsafe work. The following steps outline the procedure to be followed when invoking your rights under this section of the Code. It should be noted that the refusal must not put the life, health or safety of another person directly in danger.
An employee has the right to refuse unsafe work if the employee has reasonable cause to believe that their health and/or safety, or that of another employee is in jeopardy. If you refuse, you must notify the employer.
If the employer agrees that there is a danger, they must take immediate steps to protect the employees from danger and must then inform the workplace committee or the health and safety representative of the matter and the action taken to resolve it.
If the matter is not resolved as noted above, the employee has the right to continue to refuse and must now report the circumstances of the matter to the employer and the workplace committee or the health and safety representative.
The employer upon being informed of the continued refusal must now investigate the matter in the presence of the employee who reported it and one other person who is:
a) at least one member of the workplace committee who does not exercise managerial functions
b) the health and safety representative
c) if no person is available as noted above, at least one person from the workplace who is selected by the employee. **If more than one employee has made a report of a similar nature, those employees may designate one employee from among themselves to be present at the investigation. ("Group" refusal)
Following the investigation, should the employer disagree with the employee on the existence of danger or take steps to protect the employees and the employee still believes the danger exists, the employee must inform his/her employer of the continued refusal. The employer will then inform the workplace committee of health and safety representative and notify a health and safety officer.
The health and safety officer will want to know if the employer has tried to resolve the matter and whether or not the refusal to work is being pursued under Part II of the Code or under a collective agreement.
Upon being notified of a continued refusal, and without delay, a health and safety officer must investigate the matter in the presence of the employer, and the employee (or the employee's representative).
The health and safety officer shall upon completion of his/her investigation into the matter, decide whether the danger exists and shall immediately give written notification of the decision to the employer and employee.
If the safety officer decides that a danger does exist, he or she issues written direction to the employer to correct the situation. The employee can continue to refuse the work until the employer complies with the direction.
If the Health and Safety Officer decides that the danger does not exist the employee must return to work. The employee can, however, appeal the decision to an appeals officer. It is important to note that the employee can no longer refuse to work. If he or she does refuse to go back to work they are no longer protected by the Code.
"If a health and safety officer decides that the danger does not exist, the employee is not entitled under Section 128 or this section to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision, in writing, to an appeals officer within ten days after receiving notice of the decision."
Please contact the TCRC National Legislative Director should you decide to appeal the Health and Safety Officer's decision.
Record of Right to Refuse Dangerous Work The National Legislative Board has undertaken the initiative to document all occurrences where its members have invoked the "Right to Refuse Dangerous Work," under Section 128.1/Part-ll of the Canada Labour Code. The Board has developed a form intended to serve as a preliminary record of the event and is to be filled out by members during or as soon as possible after the event has transpired.
Click here to download the form