Workers have the right to refuse dangerous work. So the basis of their refusal must be their genuine and reasonable fear that the work poses a threat to their health or safety. For example, a worker can justifiably refuse to do welding without a welder’s helmet or use a piece of equipment that broken. But a worker can’t refuse to do a particular task simply because it makes him uncomfortable. However, it’s often unclear whether a refusal is based on a worker’s safety or personal comfort-or some combination of the two. So how does a court or other body determine the real basis for a work refusal? Let’s look at how an arbitrator and a labour relations board tackled this issue.

The OHS laws are designed to protect workers from occupational illnesses. For the system to work, workers must be allowed to report any health problems they experience as a result of exposure to a chemical, substance, process or condition at the workplace. If a worker complains that some aspect of the job is making him sick, the company must take that complaint seriously and investigate it. What the company can’t do is fire, demote or take some other retaliatory action against the worker for raising the concern. By the same token, workers who misbehave or perform poorly aren’t immune from discipline or other adverse action just because they’ve raised a health concern. Unfortunately, it’s not always easy to tell whether a company’s actions against workers who raise health complaints were the result of misbehaviour/poor performance or their complaints. When determining if retaliation has occurred, courts and tribunals typically look at whether there’s a connection between the health complaint and the company’s action. Here are two cases that deal with this issue.

Companies and individuals charged with OHS violations have the right to a “speedy” trial. Of course, “speedy” in this context is a relative term. OHS prosecutions can take months and even longer to come to trial. But while some delay is to be expected, at some point, it may become unreasonable. If delay reaches that point, the company may be able to get the court to dismiss the charges by showing that the delay “prejudiced”—that is, hurt the company’s defence. When does an unreasonable delay prejudice the defence? And does it matter if the defendant is an individual or a company? Here’s how an Ontario court answered these questions.

WHAT HAPPENED

On Jan. 17, 2006, a company and worker were charged with OHS violations for the death of a worker. The trial was finally scheduled to start on Oct. 23, 2007—21 months later. Most of that period—17.75 months—was attributed to “institutional” delay. The company and worker each asked the Ontario Court of Justice to dismiss the charges, arguing that their right to a trial within a reasonable time had been violated.

Companies that violate OHS laws won