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Response to a Refusal to Work in Case of Danger OPD 905-1

No.: 905-1
Date: 2007/03/07 (Revised)

Canada Labour Code - Part II - Occupational Health and Safety

1. Purpose

This directive establishes operational procedures to govern health and safety officers' responses to refusals to work under section 128 and section 129 of the Canada Labour Code Part II.

2. Scope

This directive applies to health and safety officers (HSOs) and all other officials of the Labour Program of Human Resources and Social Development Canada (HRSDC) in the regions and headquarters with respect to refusals to work in case of danger. It specifies the procedure to be used, starting with the initial contact with the employee and employer up to and including the final settlement of the dispute when the file can be closed.

This OPD is to be read and applied in conjunction with other relevant IPGs and OPDs, which are noted in the relevant sections as well as at the end of this OPD.

3. Overview

Screening: An official of the Labour Program initially screens notifications of refusal to work by asking the caller if the employer is in federal jurisdiction, and if the employee is refusing to work because he believes that the work poses a danger. Once this information has been gathered, the official refers the matter to the HSO who confirms the above and asks some additional screening questions.
Preliminary Inquiry: The HSO conducts a preliminary inquiry, including the applicability of the exclusions under ss.128(2) (putting others directly in danger or normal condition of employment). Only if these exclusions do not apply does the HSO investigate the existence of danger.
Investigation into and Determination of Danger or No Danger: At the conclusion of the investigation the HSO determines whether or not a danger exists based on the conditions found.
Regulatory Actions: If the HSO determines that a danger exists, he issues directions to the employee and employer. If the HSO determines that no danger exists, the employee is not entitled to refuse to work under s.128.

4. Initial Activities

4.1 Receipt of Notification of a Refusal to Work

The official of the Labour Program who receives notification of a refusal to work (i.e. Duty Officer, Manager etc.) inquires into federal jurisdiction and if the refusal is based on an occupational health and safety concern. The official then refers the refusal to work to a HSO without delay unless:

the employer is clearly within provincial jurisdiction; or
the refusal is clearly not based on occupational health and safety concerns.

When the employer is clearly within provincial jurisdiction the official of the Labour program will give reasonable assistance to the caller in contacting the appropriate provincial department or agency.

4.2 Screening by the HSO

The refusal to work may continue to the point of being investigated by a HSO only if the preliminary criteria discussed in 5 "Preliminary Inquiry" below, are met. Prior to conducting this preliminary inquiry, the HSO asks the person reporting the refusal to confirm that:

the person refusing is an employee whose employer is under federal jurisdiction;
the employee is refusing to work because he believes that the work poses a danger;
if unionized, the employee's refusal remains governed by the Code and not the collective agreement (ss.128(7) and s.130);
the employee has notified the employer of the refusal and the employer has conducted the required internal investigation; and
the right to refuse is not excluded by ss.128(2) (i.e. putting the life or health and safety of another directly in danger and normal condition of employment).

The employer or employee reporting the refusal may then determine that the notification was premature or improper and withdraw such notification. Note: Only the employee who is refusing to work can withdraw the notification on the basis of the ss.128(2) exclusions.

If the employee chooses to withdraw the notification, the HSO records this activity in LA2000 under the ERA module as counselling.

If the notification is not withdrawn, the HSO conducts a preliminary inquiry. When proceeding with the inquiry and investigation, the HSO avoids being drawn into other disputes between the parties.

4.3 Actions Required Prior to Inquiry

To facilitate the preliminary inquiry, the HSO first:

obtains details of:
- the circumstances reported to the employer under ss. 128 (6);
- the employer's investigation under ss.128(10);
- any actions taken by the employer to protect the employee who is refusing to work.
  
  (See Refusal to Work Registration Form HRSDC LAB/TRAV1069 (1994-10-001) B Lab/Trav795 (Appendix A), Qs10-12.)
instructs the employer and employee to complete Refusal to Work Registration Form (if available) HRSDC LAB1069 (1994-10-001) B LAB/TRAV795 (Appendix A).
determines whether it is necessary to direct the employer, pursuant to paragraph141(1)(f), or any person pursuant to paragraph141(1)(g), to ensure that the place or thing involved in the refusal to work not be disturbed until he arrives on the site to investigate.
determines whether any person or specialized equipment may be required to assist or guide in the decision making (e.g. air samplers, light meter, sound level meter), and obtain that equipment; and,
opens a Group or Individual Refusal to Work Assignment in LA2000.

5. Preliminary Inquiry

Until the HSO completes the preliminary inquiry, the employee has the right to refuse, and all the provisions of the Code relating to this right continue to apply (regarding payment of wages, re-assignment of duties etc).

Note: OPD 905-1 Response to the Right to Refuse Dangerous Work-New Procedure Memorandum: (PDF Document 270 KB)

5.1 Procedures for Conducting the Inquiry

The inquiry is conducted on site unless circumstances otherwise indicate that it would be more appropriate to conduct it over the telephone. This is determined if possible, in consultation with the TA. An HSO who is unable to obtain sufficient information by telephone to determine the preliminary criteria, conducts an on-site investigation. For any telephone inquiry, the procedures outlined in OPD6.1.3 are to be followed.

If not already completed, the Health and Safety Officer ensures that the "Refusal to Work Registration" form (Appendix A) is filled out, and confirms the information provided by the parties and has them sign the form. (This form serves as the basis for the inquiry and any investigation, and is also used by the Appeals Officer.)

During the inquiry, the HSO notes and gathers in a bound and numbered notebook, all of the relevant information and facts.

The Preliminary Inquiry Report (Appendix G) is completed during the course of the inquiry. It addresses three categories of preliminary criteria:

the Code governs the work refusal (Appendix G, Qs1–4)
compliance with the employer's internal investigation process (Appendix G, Qs5 &6)
exclusions under ss.128(2) (Appendix G, Qs7–15)

5.2 Code Governs the Work Refusal
(Appendix G, Qs1–4)

5.2.1

The right to refuse under the Canada Labour Code applies only to employees whose employer is under federal jurisdiction.

5.2.2

Although no specific words need to be used to exercise the right, the Code requires the refusal to be based on occupational health and safety concerns, particularly a reasonable belief in the existence of danger.

5.2.3

Unionized employees may be governed by a collective agreement rather than the Code in one of two ways. First, the Minister may have granted the parties a section130 exclusion from the right to refuse under the Code. Second, in a particular work refusal, an employee may elect under ss.128(7) to exercise his rights under a collective agreement rather than the Code, and the employee may change such election only with the employer's consent.

5.3 Compliance with Employer's Internal Investigative Process
(Appendix G, Qs5 &6)

The employee is required to notify the employer and the workplace committee or representative of the refusal (ss.128(6) and (9)), while the employer is required to conduct an internal investigation (ss.128(10)).

5.3.1 Employee Obligation

If the notification came from an employee who did not notify the employer of the refusal, the HSO informs him that the investigation can start only after the parties have tried to resolve the matter internally according to ss.128(6) to 128(14) of the Code. The HSO asks the employee to report the circumstances of the refusal immediately to his employer, as required by ss.128(6).

An employee's failure to report the matter to the employer may indicate lack of awareness of the relevant provisions of the Code, therefore the HSO should summarize the key points, noting that:

employees who are unionized and whose collective agreement provides a redress mechanism for such circumstances are required to elect whether to exercise rights under the collective agreement or under the Code, and to inform the employer of this selection. The selection of the recourse is irrevocable unless the employer and employee agree otherwise. If recourse is being pursued under a collective agreement, then the Labour Program does not intervene.
there are two key steps to the internal resolution process under the Code. The first is the employee reports the matter to his employer (ss.128(6)). If the matter is not resolved at this stage, the employee may continue to refuse to work. He then commences the second step by reporting the circumstances of the refusal to the employer and to the work place committee or health and safety representative (ss.128(9)). At this second step, the employer investigates the matter in the presence of the employee who is refusing to work (unless he chooses not to be present) and a non-managerial work place committee member or the health and safety representative. It is only if the matter is not resolved after the joint investigation and the employee continues to refuse to work, that the employer is required to notify a HSO of the continuing refusal to work (ss.128(13)).

5.3.2 Employer Obligations

The HSO does not question the "quality" of the investigation made under ss.128.(10). However, if the employer did not, and does not intend to do the investigation required under the Code, the health and safety officer may issue a direction to the employer under ss.145(1) to cease contravening ss.128(10) (see OPD-700-5, Response to Non-Compliance with the Canada Labour Code).

5.4 Danger to Others Exclusion
(Appendix G, Q7)

There is no right to refuse if the refusal puts the life or health and safety of another directly in danger (Paragraph128(2)(a)). Such refusals are rare. The HSO asks the employer, the employee and an employee member of the workplace committee or the health and safety representative if this is the case. If nobody answers in the affirmative, he proceeds to determining the next exclusion. If the matter is disputed, the HSO should obtain from each party its rationale with any supporting documents or other information. If the matter is not clear, the HSO should consult with the TA before making a determination. The rationale should be briefly provided.

5.5 Normal Condition of Employment Exclusion
(Appendix G, Qs8–15)

The determination of the existence of the normal condition of employment ("NCE") exclusion is based on IPG-070, Normal Condition of Employment. Appendix G guides the HSO through the following three key steps in the inquiry:

obtain parties' positions;
obtain relevant information; and,
determine whether the exclusion applies.

5.5.1 Obtain parties' positions
(Qs8–10)

The applicability of the exclusion is examined in light of the employee's rationale for refusing to work. This is taken from Question12 of the refusal to work registration form HRSDC LAB1069 (1994-10-001) B LAB/TRAV795. The HSO then ascertains and records the position of the parties, who should have addressed the issue of normal condition during the internal resolution process.

5.5.2 Obtain Relevant Information
(Qs11–12)

The HSO obtains and considers the following information:

documentation relevant to performance of the task, such as employer's job description or policy, written procedures, documented training or information on protective equipment relating to the task in question including, but not exclusive to, those established under the hazard prevention program; and
input from the work place parties who are knowledgeable about how the task is actually performed, particularly employees, the employer and the occupational health and safety committee or representative.

5.5.3 Determination by the HSO
(Qs13–15)

Based on the information obtained above, and in light of the parties' positions, the HSO determines how the activity or task in question is normally performed with respect to:

the environment in which the activity or task is normally performed;
the tools and equipment normally provided;
the information, instruction, training, and supervision normally provided.

The HSO then determines whether the circumstances on which the refusal is based diverge from these circumstances on more than a minimal basis. If they do, the normal condition of employment exclusion does not apply and the Code gives the employee the right to refuse.

If they do not diverge, the HSO verifies that none of the circumstances on which the refusal is based contravene the employer's specific duties under s.125 and s.125.1 of the Code and the related regulations. If they do contravene, they are not considered to be normal conditions of employment so the Code gives the employee the right to refuse.

5.6 Steps Upon Conclusion of the Inquiry

Upon completion of Appendix G and the conclusion of the inquiry, the HSO immediately notifies the employer and employee and workplace committee or health and safety representative of the determination and:

If Any of the Preliminary Criteria Are Not Met: In this case, there is no investigation into the existence of danger and the employee has no right under the Code to continue to refuse to work. The HSO finalizes the Assignment in LA2000 with the appropriate Result Code to indicate the reason that the refusal is not permitted. Within 10 days of completing the Preliminary Inquiry Report, the HSO provides a copy to the employee, employer and workplace committee or health and safety representative. (See cover letter Appendix G(i)– to be developed)

Note:: If it has been determined that there is no right to continue to refuse but the employee's individual medical condition is a factor, the HSO will inform the employer of his duty to accommodate.

In appropriate circumstances, the HSO informs the employee that he may initiate a complaint through the Internal Complaint Resolution Process (ICRP) and that, if the issue is not resolved at the workplace level, the matter may then be referred to the Labour Program without resorting to the refusal to work provisions.

An HSO who is of the opinion that there are contraventions to the Code may take appropriate action under the Compliance Policy (OPD700-2) and OPD700-5, Response to Non-Compliance with the Canada Labour Code, Part II.

Or
If All Criteria Are Met: If the preliminary criteria are met, the investigation into the existence of danger commences immediately. The Preliminary Inquiry Report forms part of the Refusal to Work Investigation Report.

6. Investigation into Danger or No Danger

After the HSO has determined that the preconditions to the employee exercising his right to refuse have been met, he investigates the existence of danger.

6.1 Procedures

The HSO will refer to the Refusal to work Registration Form (Appendix A).

Note: If the employee, after providing the essential information under Q12 (i.e., the Statement of Refusal to Work) refuses to sign the form or decides to withdraw it during the investigation, the HSO nevertheless completes the investigation and renders a decision on danger. This is because ss.129(1) makes it mandatory for the HSO to investigate qualified refusals to work and does not impose formalities such as a signed form.

6.1.1 Persons Involved

The HSO proceeds with the investigation in the presence of the employer, the employee and an employee member of the work place committee or the health and safety representative or, if not available, another employee from the work place designated by the employee.
In accordance with ss.129(3), the officer may proceed with the investigation in the absence of any person who chooses not to be present. If necessary, the HSO reminds the parties that, pursuant to the Canada Labour Code, the workplace committee or health and safety representative have the obligation to participate in all health and safety inquiries.
Where more than one employee is refusing to work for similar reasons, the HSO can request but not compel, those employees designate one employee from among themselves to be present at the investigation.
As appropriate, the HSO may under paragraph141(1)(k) interview any person in private, or at the request of the person, in the presence of the person's legal counsel or union representative.
If either party withholds reasonable assistance or if any person prevents an employee from providing information, OPD700-5, Response to Non-Compliance with the Canada Labour Code, Part II applies.

6.1.2 Documentation

During the investigation, the HSO:

Continues to note and gather in a bound and numbered notebook the relevant information and facts.

Note: The HSO will use relevant information already obtained in the Preliminary Inquiry (see especially 5.5.2) but also obtain additional information focusing on danger, such as photographs, samples, readings, measurements, depositions, information on any past incidents.

Medical certificates may be relevant documents for determining whether the danger was caused by a machine or condition at the work place or by the employee's own medical condition. If so, the HSO uses Appendix D to seek the employee's consent to the release of information.
seeks expertise where necessary to have sufficient knowledge of all the factors involved. The requirement to investigate without delay does not detract from the requirement to obtain the necessary information; and
completes the Assessment of Danger and Points to Consider When Issuing a Direction under 145(2)(a) or 145(2)(a) & (b) (see Appendix H).

The HSO includes in the Investigation Report and Decision (Appendix B):

all the information on the facts and the reasons for the decision so that all questions can be dealt with appropriately; and
Appendices G and H ("Preliminary Inquiry Report" and "Assessment of Danger and Points to Consider When Issuing a Direction under 145(2)(a) or 145(2)(a) & (b)").

6.1.3 Telephone Investigation

Bearing in mind the nature of an investigation pursuant to ss.129(1), a telephone investigation may be carried out in exceptional circumstances. For example, if the refusal to work takes place in a remote part of the country, the telephone may be the only readily available means at the health and safety officer's disposal to be rapidly informed of the refusal and help the parties in solving the issue.

Before conducting an investigation over the telephone, the HSO ensures he has access to the necessary equipment in order to receive the required documents at the time of the investigation. This may require that he proceed to Labour Program offices. During any telephone investigation, the HSO takes all reasonable measures to carry out a four-way conversation with the employer, the employee and the employee's representative to clearly establish the identity of those speaking.

6.2 Decision on Danger or No Danger

Pursuant to ss.129(4), on completion of the investigation the HSO decides whether or not danger exists as defined in s.122(1) of the Code. IPG-062 Definition of Danger provides guidance on this subject. The HSO completes Appendix H, "Assessment of Danger and Points to Consider When Issuing a Direction under 145(2)(a) or 145(2)(a) & (b)" prior to rendering the decision and it forms part of the Investigation Report.

The HSO bases his decision on:

the circumstances prevailing at the time of the investigation, and not the situation existing at the time of the refusal (although past events may be relevant in assessing the likelihood of recurrence in the future) e.g. weather has changed or managers performed the task; and,
the ongoing practice, and not any interim measures which the employer has adopted to correct the danger temporarily until the HSO arrives.

The HSO immediately notifies the employer and the employee in writing of his decision, as required under ss.129(4), and as elaborated below.

7. Regulatory Actions Following Decision of Danger or No Danger

The Code specifies the consequences of a decision of danger or no danger. Additionally, the HSO should provide the parties with relevant information.

7.1 Decision of Danger

In cases of danger, the HSO issues directions to the employer under subsection145(2) and to the employee under subsection145(2.1). The directions constitute written notification under subs.129(4).

Note: If a situation is a danger only to a particular employee due to a medical condition, a solution limited to that employee's situation is appropriate. As with all directions, the HSO will not direct a specific solution.

Before issuing a direction, the HSO:

prepares a draft based on the appropriate format in Appendix D of OPD700-5, Response to Non-Compliance with the Canada Labour Code, Part II; and,
consults with the Technical Advisor for the Region or the District Manager. In situations where both are unavailable and a decision/direction is required immediately, the HSO may act without the required consultation.

Upon issuing the direction under ss.145(2) the HSO:

affixes or causes to be affixed a "Notice of danger" pursuant to ss.145(3) to the place, machine or thing etc. This notice may not be removed unless authorized by a HSO;
explains the direction clearly to assist the parties in fully understanding its purpose and scope;
informs the parties that they have the right to appeal the direction within thirty days of the direction being issued or confirmed in writing, and that information on the mailing address, telephone and facsimile number of the appeals office are in the accompanying letter (Appendix B(i)); and
informs the parties of the rights and recourses available under s.133 and 146, and of the general prohibition pursuant to s.147.

7.2 Decision of No Danger

For a decision of No Danger, the "Letter of No Danger" (see Appendix B(ii)) serves as the written notification of the officer's decision. The HSO gives this Letter to the employer and employee immediately before leaving the work place.

Note: In the case of a group refusal the written notification (Appendix B(ii)) may be provided to the chosen representative, and copies to the individuals concerned for appeals purposes. The HSO clearly establishes the date on which each employee receives the HSO's written decision of No Danger. (This is important for appeal purposes.)

Upon providing the Letter of No Danger, the HSO also:

informs the employee that he is no longer entitled to refuse to operate the machine or thing or to work in that place pursuant to s.128(1), (9), or (13);
informs the parties that they may appeal the decision to an appeals officer within ten days after receiving notice of the decision, and that information on the mailing address, telephone and facsimile number of the appeals office are in the accompanying letter (Appendix B(i)); and,
informs the parties of the rights and recourses available under s.133 and 146, and of the general prohibition pursuant to s.147.

Note: Even if there is no danger, an HSO who is of the opinion that there are contraventions to the Code may take appropriate action under the Compliance Policy (OPD700-2) and OPD700-5, Response to Non-Compliance with the Canada Labour Code, Part II. However, unlike a danger direction, a direction under subs.145(1) should not require immediate action or protection of employees.

Note: If the HSO issues a direction he will close the refusal to work assignment and open an Inspection Specific assignment in LA2000.

8. Possible Subsequent Actions

8.1 Appeals to the Appeals Officer

Appeals are to be made directly to the Canada Appeals Office on Occupational Health and Safety (CAO-OHS). If an employer or employee sends a request for an appeal to the HSO, the HSO immediately forwards it to the CAO-OHS along with the cover letter in Appendix C.

Upon the request of the Appeals Office, the HSO provides it with copies of the relevant documents.

8.2 Judicial Review

The determination that the refusal to work is not permitted due to the preliminary criteria not being met, cannot be appealed. The employee may, however, seek judicial review before the Federal Court (contact information is provided in the letter to accompany such a decision, at Appendix G(i)). If the HSO or another officer in the Region receives a Notice of Motion to seek judicial review, the TA-OHS and Regional Director shall be informed and it should be referred to headquarters. Copies of the relevant documents will be provided to the court, if requested.

8.3 Disciplinary Measures and Complaints to the Board

If an employee complains that disciplinary action has been taken against him as a result of his refusal, the HSO informs the employee and the employer of the protection provided by s.133 of the Code and the employee's right to make a complaint to the Board. The HSO may counsel on the provisions of Part II, to avoid unnecessary complaints or references to the Board.

The HSO nevertheless provides the employee with the necessary information for the employee to contact the Board. The HSO does not decide if the complaint is admissible, since that right belongs to the Board. The employee has 90days to address his complaint to the Board in writing.

9. Finalizing the Assignment File

The HSO completes the written investigation report and appendices and sends a copy to the employer, employee(s) and the work place committee along with other appropriate appendices that were completed.

The HSO finalizes and closes the Refusal to Work Assignment file in LA2000 when either a decision of no danger is rendered, or when compliance is achieved for any AVCs or directions issued by the HSO, regardless of whether or not an appeal has been filed.

The HSO includes in the Assignment file the following documents:

a narrative report on the Assignment;
the Refusal to Work Registration Form (Appendix A);
the Preliminary Inquiry Report and, if sent, the Letter, (Appendix G);
the Investigation Report, Assessment of Danger and Points to Consider When Issuing a Direction under 145(2)(a) or 145(2)(a) & (b) and Directions and Letter (Appendices B, B(i), and H), if completed;
copy of any decision of no danger sent to the parties (Appendix B(ii) or copy of any danger directions issued; and
copy of any request for appeal of the direction or decision of no danger sent to the appeals officer (if available).

If an appeal is filed, the HSO initiates in LA2000 a Follow-Up Assignment when he is contacted by the Appeals Office. The HSO records all time spent preparing for the appeal, and includes the Appeal decision when rendered, in the Follow-Up Assignment.

Note: If a direction has been issued, the HSO or another, if assigned, initiates the appropriate activity to ensure that compliance is achieved within the appropriate time frames.

10. Responsibilities

10.1

The manager of the HSO Compliance and Operations Unit is responsible for evaluating, periodically reviewing and, where necessary, amending this directive, and ensuring uniform application in all Regions.

10.2

The Labour Program Regional Directors and Operational Managers are responsible for coordinating its implementation and ongoing application in their respective region and/or offices.

10.3

The HSOs are responsible for:

investigating refusal to work situations according to the principles and procedures described in this directive;
deciding whether or not a danger exists and issuing directions as may be required.

Director General/
Labour Program
Human Resources and Social Development Canada

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