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SUPERVISORS: Ensure Supervisors Properly Handle Work Refusals

Date First Published on OHS Insider: November 23rd, 2011
Topics: Supervisors | Work Refusals |

Refusing dangerous work is one of a worker’s most fundamental safety rights. When a worker exercises this right, it triggers an investigation and response process that’s often spelled out in the OHS laws. And your supervisors are usually a key player in this process. We’ll explain what the OHS laws say about supervisors and work refusals and how to ensure your supervisors fulfill their refusal duties.

MODEL RIGHT TO REFUSE FORM: Download a Model Right to Refuse Form that you can adapt for your workplace and use to document the steps taken in the work refusal process.

WHAT SUPERVISORS SHOULD DO

Every jurisdiction’s OHS laws give workers the right to refuse unsafe work. The law typically spells out the general process that must be used to handle work refusals but doesn’t always specify a supervisor’s role in this process. For example, the requirements may require the “employer” to take certain actions, when, in practice, it’s likely that a supervisor will take those actions on the employer’s behalf. However, in general, supervisors should do the following when a worker refuses work.

Step #1: Investigate the Refusal

Every jurisdiction requires workers to notify their employer or supervisor that they’re refusing unsafe work. And once a supervisor is notified, he must investigate the refusal. It’s critical that supervisors understand that they can’t dismiss a worker’s refusal out of hand and simply say, “That’s ridiculous. Go back to work.” If they don’t look into the circumstances of the refusal before coming to any conclusions as to its validity, they or the company could be held liable for an OHS violation.

Example: After a production line supervisor and a worker got into an argument, the worker got so upset that his hands started to tremble. He refused to work, saying “It’s unsafe with you standing over me and hollering at me. My hands are shaking, and I may slip and cut off a finger.” The worker asked for the company’s safety representative to investigate, but the supervisor said no, claiming the refusal was “totally ridiculous.” An Ontario arbitrator ruled that the supervisor shouldn’t have dismissed the worker’s refusal and decided on his own that it was unwarranted. Instead, he should have taken the refusal seriously and followed the procedures required by law [Lennox Industries (Canada) Ltd. v. United Steelworkers of America, Local 7235].

The investigation of a work refusal is a supervisor’s most important duty in the refusal process. The nature of the investigation itself will depend on the refusal. For example, the investigation into a worker’s refusal based on a broken guard on a piece of equipment should be pretty straightforward. But other refusal investigations may be more complex, such as those into refusals based on ergonomics-related concerns or fears of violence. But the key aspects of any refusal investigation include:

When it must be done. The OHS laws generally require the investigation of a work refusal to be done immediately or promptly.

Who must be present. In BC, the supervisor may perform this initial investigation on his own. In other jurisdictions, such as MB, NB, NT, NU, ON, PE, QC and YT, the supervisor must conduct the investigation in the presence of:

  • The worker who exercised the right to refuse;
  • The JHSC or a worker representative from the JHSC;
  • A health and safety representative;
  • A representative from the worker’s union; and/or
  • A worker selected by the refusing worker.

Note that the laws state that these other parties must be present but don’t say they must actually participate in the investigation. But practically speaking, it may be useful to have them participate, particularly the worker making the refusal who can explain or point out exactly what the problem is.

Standard for evaluation. The goal of the supervisor’s investigation is to determine the validity of the refusal. The OHS laws use slightly different language but essentially the standard is whether the worker has “reasonable” grounds or cause to believe that the work or equipment poses an undue hazard to himself or others.

In determining whether the worker’s grounds are reasonable, the supervisor should ask himself, “Would an average worker, with the same level of training and experience, using normal and honest judgment, agree that the work or equipment poses an unacceptable hazard?” But although the standard is based on an “average worker,” don’t necessarily conclude a refusal is invalid if the danger posed is unique to a particular worker. For example, say a worker refuses to perform work that requires the use of latex gloves, to which she’s allergic. Even though using latex gloves may not pose a hazard to other workers, if the worker is legitimately allergic to latex, it poses a hazard to her and thus her refusal is justified.

Step #2: Take Appropriate Action

The investigation will likely result in one of two outcomes:

Refusal is justified. If the supervisor concludes that the worker had reasonable grounds for the work refusal, he should immediately take steps to ensure that the hazard is remedied, such as having equipment repaired, installing a guard, replacing defective PPE, recommending safety measures to the employer, etc.

Refusal isn’t justified. If the supervisor concludes that the worker didn’t have reasonable grounds for the refusal, he should explain his conclusion to the worker and tell him to resume work.

In rare cases, the supervisor may not be able to conclude on his own whether the refusal is valid. For example, he may need to consult an expert, such as an engineer or OHS hygienist.

Step #3: Notify JHSC or OHS Official of Refusal

Workers may not always agree with the outcome of the supervisor’s investigation. They may continue to refuse work if they believe a hazard still exists or that the remedies put in place to address the hazard aren’t sufficient. In that event, the supervisor and/or the worker should notify:

  • The JHSC; or
  • The appropriate government official, such as an OHS officer or inspector.

In BC, if the worker continues to refuse, the supervisor must conduct another investigation but, this time, do it in the presence of the worker and either a worker member of the JHSC, union representative or worker selected by the refusing worker. If the supervisor’s second investigation doesn’t resolve the matter, the supervisor must notify a government OHS officer.

At this point, the supervisor’s role is essentially done, although he may be asked to assist in the investigation by the JHSC or government official.

WHAT SUPERVISORS SHOULDN’T DO

In addition to understanding what supervisors should do, it’s equally important to understand what they should not do. Most notably, supervisors must not discipline or in any way penalize a worker for exercising his right to refuse unsafe work, even if they believe the refusal is frivolous. For example, suspending, demoting or harassing a worker over a refusal is an illegal reprisal barred under the OHS laws of every jurisdiction.

Example: In the Lennox case mentioned above, when the worker continued to refuse to work, the supervisor suspended him for two days. The arbitrator ruled that the supervisor should’ve investigated the refusal and ordered the employer to rescind the suspension.

In addition, supervisors may not assign another worker to do the work the first worker refused to do UNLESS they first inform the second worker of:

  • The first worker’s refusal and the grounds for it; and
  • His right to refuse unsafe work under the OHS law.

MODEL RIGHT TO REFUSE FORM: Download a Model Right to Refuse Form that you can adapt for your workplace and use to document the steps taken in the work refusal process.

BOTTOM LINE

When work refusals end up before courts or arbitrators, it’s often because a supervisor botched his duties in handling the refusal process. So it’s important that you understand the role supervisors play in handling work refusals and ensure that they’re adequately trained to fulfill

that role.

SHOW YOUR LAWYER

Lennox Industries (Canada) Ltd. v. United Steelworkers of America, Local 7235, [1999] O.L.A.A. No. 158, March 3, 1999

 

SUPERVISOR DUTIES AS TO WORK REFUSALS

Here’s what the OHS laws in each jurisdiction say about the role of supervisors in the work refusal process:

RELEVANT LAWS

FED

No specified supervisor duties as to work refusals as governed by Sec. 128. But if a worker has reasonable grounds to believe that there’s been an OHS violation or that there’s likely to be an accident or injury [Sec. 127.1(1)]:

1) The worker must make a complaint to his supervisor and they must try to resolve the issue between themselves as soon as possible [Sec. 127.1(2)].

2) If they can’t resolve the issue themselves, the worker or supervisor may refer the issue to the JHSC or health and safety representative for investigation [Sec. 127.1(3)].

Canada Labour Code

AB

No specified supervisor duties as to work refusals.

OHS Act

BC

1) A worker who refuses unsafe work must report the circumstances of the unsafe condition to his supervisor or employer [Sec. 3.12(2)].

2) Upon getting this report, the supervisor (or employer) must investigate the matter and:

a) ensure that any unsafe condition is remedied without delay; or

b) if in his opinion the reported concern isn’t valid, inform the worker who made the report [Sec. 3.12(3)].

3) If the worker continues to refuse work, the supervisor (or employer) must investigate the matter in the presence of the worker who made the report and of:

a) a worker member of the JHSC;

b) a worker selected by the union representing the worker; or

c) if there’s no JHSC or union, any other reasonably available worker selected by the worker [Sec. 3.12(4)].

4) If this investigation doesn’t resolve the matter, the supervisor (or the employer) and the worker must immediately notify an OHS officer [Sec. 3.12(5)].

OHS Reg.

MB

1) A worker who refuses to work must promptly report the refusal and reasons for it to his immediate supervisor, employer or any other person in charge of the workplace [Sec. 43(2)].

2) If the dangerous condition isn’t immediately remedied, the supervisor (or whoever got the refusal report) must immediately inspect the workplace in the presence of the worker and one of the following:

a) the worker co-chair of the JHSC or, if that person is unavailable, a worker member of the JHSC;

b) the health and safety representative or, if that person is unavailable, another worker selected by the worker refusing to work; or

c) if there’s no JHSC or health and safety rep, a worker selected by the worker refusing to work [Sec. 43(3)].

3) If the issue isn’t resolved after this inspection, anyone present during the inspection, including the supervisor, may notify an OHS officer [Sec. 43.1(1)].

Workplace Safety and Health Act

NB

1) A worker who refuses unsafe work must immediately report his concerns to his immediate supervisor, who must promptly investigate the situation in the worker’s presence [Sec. 20(1)].

2) If the supervisor finds that the worker has reasonable grounds for the refusal, he must take appropriate remedial action or recommend appropriate remedial action to the employer [Sec. 20(2)].

3) If the supervisors finds that the worker doesn’t have reasonable grounds for the refusal, he must advise the worker to do the work [Sec. 20(3)].

OHS Act

NL

No specified supervisor duties as to work refusals, although workers are required to report refusals to their supervisors [Sec. 46].

OHS Act

NT/

NU

1) A worker who refuses unsafe work must promptly report the circumstances to the employer or his supervisor, who must, without delay, investigate the report and take steps to eliminate the unusual danger in the presence of the worker and a representative of the worker’s union (if there is one) or another worker selected by the worker who made the refusal [Sec. 13(3)].

2) After the investigation, the supervisor (or employer) must notify the worker of the results and any steps taken [Sec. 13(4)].

3) If the worker continues to refuse, the employer, supervisor or worker must, without delay, notify the JHSC or, if there’s no JHSC, a delegate of the Chief Safety Officer of the refusal [Sec. 13(4)].

Safety Act

NS

No specified supervisor duties as to work refusals, although workers must report refusals to their supervisors [Sec. 43(2)(a)].

OHS Act

ON

A worker who refuses unsafe work must promptly report the circumstances to the employer or his supervisor, who must immediately investigate the report in the worker’s presence and in the presence of:

a) a worker member of the JHSC;

b) a health and safety representative; or

c) a worker selected by the union that represents the refusing worker or, if there’s no union, selected by the workers to represent them [Sec. 43(4)].

OHS Act

PE

1) A worker who refuses unsafe work must immediately report the concern to his supervisor, who must promptly investigate the situation in the worker’s presence [Sec. 28(2)].

2) If the supervisor finds that the worker has reasonable grounds for the refusal, he must take appropriate remedial action or recommend appropriate remedial action to the employer [Sec. 28(3)].

3) If the supervisor finds that the worker doesn’t have reasonable grounds for the refusal, he must advise the worker to do the work [Sec. 28(4)].

OHS Act

QC

1) A worker who refuses unsafe worker must immediately inform his supervisor, employer or an employer agent [Sec. 15].

2) The supervisor (or employer or agent) must notify the health and safety representative, a union representative or a worker designated by the worker making the refusal of his examination of the refusal and any corrective measures he intends to apply [Sec. 16].

OHS Act

SK

No specified supervisor duties as to work refusals.

OHS Act

YT

1) A worker who refuses unsafe work must immediately report the circumstances to his employer or supervisor, who must immediately investigate the situation in the presence of the worker and:

a) the JHSC;

b) a health and safety representative; or

c) a worker selected by the worker making the refusal [Sec. 15(2)].

2) If the worker continues to refuse to work, the supervisor or employer must immediately notify an OHS officer [Sec. 15(4)].

OHS Act

 

Work Refusal Resources

Fed: Right to Refuse Dangerous Work Pamphlet

MB: Your Right to Refuse Dangerous Work Bulletin

NB: Right to Refuse Dangerous Work Resources; work refusal flow chart

ON: Guide to the OHS Act: Chapter 7: The Right to Refuse Work

SK: Right to Refuse Unusually Dangerous Work

 

 
 
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