Nuanced right to refuse for provincially regulated workers
Provincial law takes a more nuanced approach than its federal counterpart when it comes to unsafe work conditions, Toronto employment lawyer Bram Lecker tells Advocate Daily.
Lecker, principal of Lecker & Associates, explains that employees in all industries, whether federally or provincially regulated, have a right to refuse work they believe is unsafe — a right backed by a landmark 2014 Supreme Court case in which the nation’s top court said that the ability was automatically read into all employment contracts.
However, he says Ontario’s two-tier system makes it easier for workers to raise concerns before the situation becomes critical.
“The federal system is a little archaic. There should be a mechanism for saying: ‘I don’t see the equipment melting down, but I have a feeling it’s not being maintained or handled right,’” Lecker says. “That’s what the provincial laws do and I think that more nuanced approach is a better one.”
He says the relatively small number of workers employed in federally regulated sectors may account for the lack of development in the law at that level.
In Ontario, the Occupational Health and Safety Act (OHSA) distinguishes between the refusal to work in normal conditions, as opposed to “dangerous circumstances.”
Under s. 43 of the Act — which applies to everyone except those in “inherently dangerous” professions such as policing, firefighting and others — individuals may refuse work if they believe:
- the equipment poses a danger to themselves or a colleague;
- the physical condition of the workplace poses a risk;
- there is a risk of workplace violence;
- equipment or machinery does not meet modern standards.
To exercise the right to refuse, workers must first report their concerns to a supervisor, who in turn must complete a report on the protest. If the employee’s concerns are addressed, then they can return to work.
“But if the supervisor finds nothing wrong and the worker feels their safety fears have not been dealt with, then, and only then, can they refuse to work,” Lecker says, noting that an employee must have “reasonable grounds” to believe that the danger persists.
“They have to be objectively reasonable grounds, and it’s typically based on a group consensus. It can’t just be that you’re scared to go in an elevator,” he says. “That way, it’s difficult for one person to stop the entire production line.”
At this stage, Ontario’s Ministry of Labour should be informed of the complaint and an investigator will be dispatched to provide a written report outlining any changes that are required. Employers should take care in their dealings with the complainant during this period since failure to pay or any other penalty imposed on them could be considered an unlawful reprisal under the Employment Standards Act, Lecker adds.
Under s. 44 of the OHSA, workers can also refuse work and request an investigation into “dangerous circumstances,” which include immediate or high-level dangers and breaches of the Act.
For federal workers, the right to refuse work is governed by s. 122 of the Canada Labour Code, Lecker explains. Its more straightforward approach allows a refusal when working conditions are “dangerous,” meaning 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.”
“Although the test is higher, and there has to be a really serious threat, no types of workers are exempted,” Lecker says.