How to Refuse Dangerous Work in a Federally Regulated Workplace in Canada

Who can refuse dangerous work under the Canada Labour Code?

The procedure applies to workplaces governed by Part II of the Canada Labour Code. This includes many federally regulated private-sector workplaces as well as the federal public service.

Examples of federally regulated industries include banks, airlines and airports, telecommunications, radio and television broadcasting, postal and courier services, interprovincial or international trucking and bus operations, interprovincial or international railways, marine shipping and port services, pipelines crossing provincial or international borders, uranium mining and processing, atomic energy operations and most federal Crown corporations.

If your employment is provincially or territorially regulated instead, the applicable province or territory has its own occupational health and safety legislation and refusal procedure. Do not use the federal process simply because your employer operates in Canada.

When does the Canada Labour Code let you refuse work?

Section 128 of the Canada Labour Code allows an employee, while at work, to refuse in three types of situations when the employee has reasonable cause to believe there is a danger:

• using or operating a machine or thing constitutes a danger to the employee or another employee;
• a condition in the workplace constitutes a danger to the employee; or
• performing an activity constitutes a danger to the employee or another employee.

The Code defines danger as a hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of an exposed person before the hazard or condition can be corrected or the activity altered.

When is the right to refuse restricted?

The right has two important statutory exceptions. You cannot refuse under section 128 if the refusal itself would put the life, health or safety of another person directly in danger, or if the danger is a normal condition of employment.

These exceptions are part of the legislation, so an employee should not assume that every hazardous aspect of a job automatically supports a work refusal.

Step 1: report the dangerous situation to your employer

When exercising the right to refuse, report the circumstances to your employer without delay. There is no federal application fee and the Code does not require the employee to begin the process by submitting a government application form.

Describe the specific machine, condition, location or activity you believe creates the danger and why. Keeping a clear record of what was reported, when it was reported and what occurred afterward can be useful if the refusal later proceeds to further investigation or appeal.

What if your collective agreement has its own refusal procedure?

If a collective agreement provides a redress mechanism for the circumstances giving rise to the refusal, the Code requires the employee to tell the employer whether they intend to proceed under the collective agreement or under section 128. Once that choice is made, it cannot normally be changed unless the employee and employer agree.

Step 2: the employer must investigate immediately

After receiving the report, the employer must immediately investigate the matter in the presence of the employee who reported it. Immediately after completing the investigation, the employer must prepare a written report setting out the results.

If the employer agrees that danger exists, it must take immediate action to protect employees and inform the workplace health and safety committee or health and safety representative about the matter and the corrective action.

Step 3: continue the refusal and involve the safety committee or representative

If the employer's first investigation does not resolve the issue and you remain entitled to refuse, you may continue the refusal. You must report the circumstances without delay to both the employer and the workplace health and safety committee or representative.

If the workplace has a committee, it designates two members to investigate: one employee member and one employer member. If the workplace uses a health and safety representative instead, the representative investigates with a person designated by the employer.

The investigation must begin immediately and, once completed, the investigators must provide the employer with a written report setting out their findings and recommendations, if any.

Step 4: the employer makes a formal decision

After considering the committee or representative's report and recommendations, the employer must decide that:

• danger exists;
• danger exists, but refusing is not permitted because the refusal directly endangers another person or the danger is a normal condition of employment; or
• danger does not exist.

If the employer decides that danger exists, it must take immediate protective action. If it decides that the refusal is not permitted or that no danger exists, it must notify the employee in writing.

Step 5: what happens if you still believe the work is dangerous?

If you disagree with the employer's written decision and continue refusing, tell the employer that the refusal continues. The employer must then immediately inform the Head of Compliance and Enforcement and the workplace health and safety committee or representative.

The employer must also send the Head its initial investigation report and the applicable report from the committee or representative.

This is an important feature of the statutory process: after a continued refusal reaches this stage, it is the employer that is expressly required to notify the Head and provide the investigation reports.

What happens during the federal investigation?

The Head must investigate after being informed of the continued refusal unless the Head concludes that the matter could more appropriately be dealt with under another federal procedure, is trivial, frivolous or vexatious, or that the continued refusal is in bad faith.

If an investigation proceeds, you may continue refusing the specific work during the investigation.

The employer may require you to remain at a safe location near the place being investigated or assign you reasonable alternative work. During the federal investigation, another employee may perform the refused work only if that person is qualified, has been told about the refusal and the reasons for it, and the employer is satisfied on reasonable grounds that the other employee will not be put in danger.

What can the Head decide?

After the investigation, the Head makes one of the same three core findings: danger exists; danger exists but the refusal is not permitted under the statutory exceptions; or danger does not exist.

If danger exists, the Head issues the directions considered appropriate. The refusing employee may continue the refusal until the directions are complied with or are varied or rescinded.

If the Head decides that no danger exists, or that danger exists but the refusal is not permitted, the employee is no longer entitled under sections 128 and 129 to continue refusing that work.

Can you appeal a decision that there is no danger?

Yes. If the Head finds that danger does not exist or that danger exists but the refusal is not permitted, the employee or a person designated by the employee can appeal the decision in writing to the Canada Industrial Relations Board.

The appeal must be filed within 10 calendar days after receiving notice of the decision. The Board strongly recommends using its Application to Appeal a Decision form, and documents can be submitted through the Board's E-Filing Web Portal.

An appeal does not mean that you can keep refusing after a no-danger or not-permitted decision. Section 129 provides that the right to continue refusing ends when that decision is made, even though an appeal may be filed.

Special procedure for employees on operating ships and aircraft

The ordinary first step is modified for employees on a ship or aircraft while it is legally considered to be in operation. If such an employee reasonably believes a machine, workplace condition or activity presents a work-related danger, they must immediately notify the person in charge.

The person in charge decides, as soon as practicable and taking safe operation of the ship or aircraft into account, whether the employee may stop the work. If the employee is told that they may not discontinue the work, section 128 restricts the employee from refusing it while the ship or aircraft remains in operation.

Are you paid while a dangerous-work refusal is investigated?

Unless a collective agreement or other agreement provides otherwise, employees affected by a work stoppage arising from the statutory health and safety process are generally deemed to be at work for the purpose of wages and benefits until work resumes or until the end of the scheduled work period or shift, whichever comes first.

The employer may assign reasonable alternative work to employees who are deemed to be at work. The Code also contains repayment rules where, after all avenues of redress are exhausted, it is determined that the employee exercised the refusal rights knowing that no circumstances existed that would warrant doing so.

Can your employer punish you for refusing dangerous work?

The Canada Labour Code prohibits an employer from dismissing, suspending, laying off or demoting an employee, imposing a financial or other penalty, refusing applicable remuneration, disciplining the employee or threatening such action because the employee acted in accordance with Part II, sought its enforcement, supplied health and safety information or participated in a proceeding covered by the Part.

If you believe your employer retaliated because you exercised your health and safety rights, you can make a reprisal complaint to the Canada Industrial Relations Board. The statutory deadline is generally 90 days after the date you knew or ought to have known about the action or circumstances giving rise to the complaint.

For a reprisal complaint connected to a work refusal, the Code also requires compliance with the applicable work-refusal reporting requirements before the complaint can proceed. In such a complaint, the statutory burden of proof concerning whether the contravention occurred is placed on the party alleging that it did not occur.

Can an employer ever discipline someone over a work refusal?

Yes, but the rule is narrow. After all applicable investigations and appeals have been exhausted, an employer may take disciplinary action if it can demonstrate that the employee wilfully abused the rights under sections 128 and 129.

If the employee requests written reasons for that disciplinary action, the employer must provide them within 15 working days after receiving the request.

Common mistakes to avoid

• Using the federal process without first confirming that Part II of the Canada Labour Code applies to your workplace.
• Failing to report the circumstances of the refusal to the employer without delay.
• Refusing for a general workplace disagreement without identifying the machine, condition, place or activity believed to constitute a statutory danger.
• Ignoring the exceptions where the refusal would directly endanger another person or the danger is a normal condition of employment.
• Failing to notify both the employer and workplace committee or representative when continuing the refusal after the first investigation.
• Assuming the first conversation with a supervisor automatically completes all stages of the statutory process.
• Continuing to refuse after the Head has decided that no danger exists or that the refusal is not permitted.
• Missing the 10-day appeal deadline after receiving an appealable decision from the Head.
• Missing the separate 90-day deadline if prohibited retaliation occurs.
• Applying the ordinary procedure without recognizing the special statutory rules for a ship or aircraft while it is in operation.