OHS laws give workers the right to refuse dangerous work, provided that the workers’ fears are reasonable. If the work isn’t really dangerous—or doesn’t reasonably appear to be dangerous—the refusal is unjustified and the worker may be subject to discipline for insubordination. Safety coordinators like you are often called in to help determine whether or not a worker’s refusal is justified. And your company is counting on you to get it right. If you say that a refusal is justified when it really isn’t, you let workers get away with disrupting operations. But if you make the opposite mistake, you may expose your company to liability if the worker is then disciplined for a refusal a court ultimately finds was justified.

Proper handling of refusals is a big challenge because it involves more than just knowing the difference between a reasonable and unreasonable fear of danger. The OHS laws of each province and territory also lay out specific procedures for employers to follow when investigating and responding to a workplace refusal. And these procedures aren’t just window dressing. Many companies have ended up on the losing end of refusal cases because they failed to follow the proper procedures. Unfortunately, even companies with highly developed safety programs and experienced safety coordinators make procedural mistakes. The Insider has discovered some common traps that safety coordinators and companies fall into when dealing with work refusals. We’ll tell you about 9 common work refusal traps and what you can do to avoid them.

Trap #1: Failing to Explain Refusal Procedures to Workers
Trap: The right to refuse dangerous work is a key protection. By the same token, workplace refusals are often disruptive and can bring a company’s operations to a standstill. The refusal procedures set out in the OHS laws are designed to ensure that the employer addresses the basis for the refusal as orderly and quickly as possible. But for the process to work, workers must cooperate and follow the proper procedures (both under OHS law and company policy). Unfortunately, some companies do a poor job of explaining the refusal procedures. Consequently, refusals generate greater disorder and chaos than they should.

Example: The OHS laws of most provinces require a worker to notify a supervisor of his refusal to work and explain the reasons why. But if workers don’t know that a supervisor is the go-to guy for refusals, they may notify someone else, such as a co-worker, or simply walk off the job without talking to anyone, thereby delaying the investigation, maximizing confusion and prolonging disruption.

Solution: As part of your worker training program, educate and train workers on proper refusal procedures under your province’s OHS laws and your company’s specific requirements. For example, if you have a form workers must fill out explaining the basis for their refusal, make sure workers are familiar with the form and know where to get one.

Trap #2: Failing to Determine the Basis for the Worker’s Refusal
Trap: Workers might not tell you why they’re refusing work or give only a vague reason. So a worker who refuses work because of a valid safety concern might seem like he’s just being insubordinate and receive immediate punishment from his supervisor. The company could then be held liable for improper discipline, even if the worker never made it clear that the refusal was for safety reasons.

Example: Two Ontario workers were carrying a heavy steel beam. One of the workers accidentally dropped his end and the beam almost crushed the other. The latter told the supervisor that he wouldn’t work with the former ever again. But the company didn’t realize that it was a work refusal because the worker didn’t tell the supervisor that his refusal was because he felt his co-worker was unsafe. So the company was found liable for improper discipline and had to reinstate the worker [Frankel Steel Ltd.]. If the supervisor had simply asked why the worker didn’t want to work with his co-worker, the misunderstanding would have been avoided.

Solution: Make sure both workers and supervisors know that workers can’t simply refuse work without giving a reason. And that reason should be very specific and explain exactly why the worker believes the work in question is dangerous. Example:

   Wrong: “I don’t want to use this tool because it doesn’t feel right.”
   Right: “I don’t want to use this tool because the blade feels loose and isn’t attached tightly.”

Trap #3: Failing To Investigate the Refusal
Trap: It may be tempting to rush to judgment and dismiss a worker’s refusal as laziness or insubordination. But writing a refusal off as frivolous and ordering the worker back to work without an investigation is a big mistake.

Example: A production line supervisor had a reputation for being a bully and, in fact, had butted heads with one worker in particular. One day, the supervisor and the worker got into an argument. The worker became so upset that his hands started to tremble. So he refused to work. “It’s unsafe with you standing over me and hollering at me,” he claimed. “My hands are shaking, and I may slip and cut off a finger.” The worker asked for the company’s elected safety representative to investigate the refusal, but the supervisor refused. In his eyes, the refusal was “totally ridiculous.” When the worker continued to refuse to get back to work, the supervisor suspended him for two days. So the worker filed a grievance.

An Ontario arbitrator ruled that the supervisor shouldn’t have dismissed the worker’s refusal and decided on his own that it was unwarranted. He should have taken the refusal seriously and followed the procedures required by law. The arbitrator said the worker’s grievance was justified and ordered the employer to rescind the suspension [Lennox Industries (Canada) Ltd. v. United Steelworkers of America, Local 7235].

Solution: The OHS laws require you to investigate all workplace refusals, no matter how absurd or ridiculous they may appear. As the Lennox case shows, failing to investigate is automatic grounds for losing a refusal case. Your investigation doesn’t have to be extensive. Exactly what you should look at and who you should talk to will depend, of course, on the basis for the refusal. For example, if a worker refuses to use a piece of machinery that he says isn’t working properly, you might examine that machine, speak to other workers who recently used it and check the machinery’s maintenance records.

Trap #4: Immediately Disciplining the Worker for His Refusal
Trap: Companies sometimes discipline workers on the spot for refusing work, particularly if it looks like the refusal is frivolous or that the worker has an ulterior motive. Supervisors are especially prone to fly off the handle and take immediate action against a refusing worker. The Lennox case above is a good example.

Solution: Train supervisors to follow the proper refusal procedures. Make sure they understand that they must keep their tempers in check and refrain from imposing discipline on the spot. If the worker still refuses, wait until you decide that the refusal isn’t justified before you even consider disciplining the worker.

Even then, you still may not be able to discipline the worker for continuing to refuse. Most provinces give workers the right to contest the investigation of their refusal if they’re not satisfied with the results. At that point, a government inspector or investigator is typically called in. Discipline is appropriate only after the government official concludes that the refusal isn’t justified and the worker continues to refuse. But keep an open mind. Discipline may be a bad idea if the worker sincerely believed the work was dangerous and was simply wrong.

Trap #5: Dismissing Refusal if Danger is Unique to That Particular Worker
Trap: In most cases, the basis for a work refusal is a condition or circumstances that would pose a danger to any worker—not just the worker making the refusal. For example, welding without the appropriate PPE would be dangerous for any worker. But a work refusal may still be justified if the condition or circumstance the worker is complaining about only poses a danger to him.

Example: An unusually tall trucker refused to drive a small armoured truck because it would be dangerous: his position in the seat left little room to manoeuvre and made it hard for him to reach the controls. The employer dismissed his refusal, arguing that the truck was in good shape and didn’t pose a problem for drivers of normal height. Plus, the driver only had to drive the truck a short distance. A health and safety officer ruled that making the tall driver drive a small truck posed a danger to this particular driver and thus his refusal was justified [Garda du Canada Inc. and Syndicat National des Convoyeurs de Fonds].

Solution: Refusal laws protect all workers, including ones in unique situations or who have special sensitivities. So don’t dismiss a work refusal if the danger posed is unique to a particular worker. Instead, investigate the refusal like any other refusal and determine whether it was reasonable for that specific worker to refuse to do that specific work. If so, the refusal is justified and you must take steps to accommodate the worker. For example, if a worker refuses to use a particular chemical because she’s allergic to it—even though other workers have no problems using that chemical—if possible, let her use a different chemical to perform that job. If not, reassign her to work that doesn’t involve the use of the chemical in question.

Trap #6: Not Notifying & Involving All Necessary Parties
Trap: If the worker isn’t satisfied with the supervisor’s investigation and proposed resolution and continues to refuse to work, OHS laws typically require you to notify other parties about the work refusal and involve them in the investigation and resolution. However, out of a desire to quickly resolve the refusal and get the worker back to work, companies sometimes fail to notify everyone they should. And failing to report continuing work refusals to the right parties may violate OHS laws and collective agreements.

Solution: Make sure that you notify anyone you’re required by law to notify of any continuing work refusals. For example, the OHS law in your province may require you to notify the JHSC or health and safety representative, or a government inspector. And in unionized workplaces, the collective agreement may require you to notify the worker’s union representative.

Trap #7: Not Paying Worker During Refusal
Trap: When a worker refuses to do certain work, you may be able to reassign him to another job until his refusal is resolved. But if reassignment isn’t possible, the worker won’t be able to do any work at all while his refusal is being investigated (although he’s presumably assisting in the investigation). Some investigations take hours, but others can drag on for days. You may think that you don’t need to pay workers who don’t work while a refusal investigation is pending. But in most provinces, you do.

Example: A customs officer refused to work because of safety concerns. A health and safety officer investigated the work refusal and ultimately determined that there was no danger. So the officer returned to work. But the employer refused to pay the officer for the time during his refusal. A Board ruled that the employer had violated the Canada Labour Code, which bars employers from refusing to pay workers for any period during which the workers would have been working but for their work refusal. So it ordered the employer to pay the officer any lost wages and benefits [Ferrusi v. Treasury Board (Canada Border Services Agency)].

Solution: Check the OHS laws in your province to see if they require you to pay a worker while his refusal is being investigated. If they do, make sure the worker gets paid for that time and that those hours aren’t deducted from his paycheque.

Insider Says: If you do reassign the worker, most provinces require you to pay him his normal wage, even if the usual pay for the reassigned work would be less.

Trap #8: Improperly Assigning a Replacement Worker to Do Refused Work
Trap: When one worker refuses, it may be tempting to assign another worker to do the job. But most provinces restrict your right to assign a replacement worker to do the job that the worker refused. And if you fail to comply with those restrictions, you could expose the replacement worker to a hazard—and your company to liability.

Solution: Don’t assign a replacement worker to do refused work until you’ve conducted a preliminary investigation of the refusal and determined that no danger exists. After all, if the refusal was justified, you’d only be endangering the replacement worker. If you don’t believe that any danger exists but the worker continues to refuse, then you can assign the refused work to a replacement worker but only if you:

• Are reasonably sure the replacement worker won’t be exposed to imminent danger;
• Tell the replacement worker about the work refusal and the reason for it; and
• Allow the replacement worker to also refuse to do the work in question.

Trap #9: Failing to Remedy Situation if Work is Found to Be Dangerous
Trap: If a worker refuses to work and an investigation reveals that the refusal was, in fact, justified, your work has just begun. After all, the work refusal has now brought a workplace hazard to your attention. And once you’re aware of a hazard, you’re legally obligated to take steps to protect workers from that hazard. If you don’t, a dangerous situation will continue to exist and thus justify additional work refusals by the same or other workers. Plus, you could now be liable for an OHS violation for failing to take reasonable steps to protect workers from known hazards.

Solution: Take steps to address the hazard identified by the refusal and confirmed by the subsequent investigation. For example, if the worker complained that his PPE was defective or inadequate, provide him with adequate PPE that’s in good working condition. Or if the worker refused to work because a piece of machinery was broken, make sure the broken machine is repaired.

Conclusion
As a safety coordinator, you shouldn’t look at a refusal to perform dangerous work as simply an annoyance and a disruption but as an opportunity. Most refusals aren’t frivolous; they’re based on genuine safety concerns and may uncover workplace hazards of which you may have been unaware. So handling work refusals properly enables you to protect your workers from hazards—and your company from liability.

SHOW YOUR LAWYER
Ferrusi v. Treasury Board (Canada Border Services Agency), [2007] PSLRB 1, Jan. 5, 2007
Frankel Steel Ltd., [1985] O.L.R.B. Rep. Aug. 1210
Garda du Canada Inc. and Syndicat National des Convoyeurs de Fonds, [2005] C.L.C.A.O.D. No. 39, Sept. 14, 2005
Lennox Industries (Canada) Ltd. v. United Steelworkers of America, Local 7235, [1999] O.L.A.A. No. 158, March 3, 1999