8 Traps to Avoid in Responding to Work Refusals

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OHS laws let workers refuse work they reasonably believe is dangerous. Once a refusal is initiated, companies must determine whether the refusal is a justified assertion of a safety right or an act of insubordination subject to discipline. Responding to refusals isn’t simply about figuring out if a worker’s fears are reasonable; a big part of the challenge is ensuring that you follow the proper procedures for investigating work refusals that are set out in your jurisdiction’s OHS laws. The procedures aren’t just window dressing. Many a company with a strong case on the merits has ended up on the wrong end of a refusal case because of a procedural blunder. Here’s a look at eight of the most common work refusal traps and how to avoid them.

Trap #1: Not Explaining Refusal Initiation Procedures to Workers

Although work refusals are a key safety protection, they can also tie operations up in knots. To strike an appropriate balance, the OHS laws establish specific procedures that workers must follow to initiate a proper work refusal. Refusal procedures are typically set out in the collective agreement and/or company HR or OHS policies. Unfortunately, they aren’t always clearly communicated to front line workers. This breakdown typically causes work refusals to become more disruptive.

Example: Some jurisdictions require workers to notify their supervisor that they’re exercising their refusal rights and explain the reasons why. But experts tell us that employers often do a poor job of explaining the supervisor’s role in work refusals—to both workers and supervisors themselves. Consequently, refusing workers are apt to simply walk off the job without talking to anyone in a position of authority.

Insider Says: Click here for more information on supervisors’ role in handling work refusals.

Solution: As part of your training program, educate and train workers on proper refusal procedures under your jurisdiction’s OHS laws and your company’s specific policies. For example, make sure workers are familiar with and can easily access any forms they have to fill out to initiate a work refusal.

Trap #2: Not Determining the Basis of the Refusal

To properly respond to a work refusal, you need to know exactly why the worker’s refusing work. But workers sometimes offer only vague explanations—and in some cases, no reason at all. Supervisors on the scene may confuse such failure to communicate clear reasons for refusal as insubordination and issue immediate and ultimately unjustifiable discipline, exposing the company to liability for reprisals under the OHS laws.

Example: An Ontario worker accidentally dropped the end of a heavy steel beam he was carrying with a co-worker. The beam barely missed the co-worker’s foot. The co-worker told the supervisor he refused to work with that worker ever again. The supervisor didn’t know what happened with the steel beam and the co-worker didn’t tell him. So he thought the co-worker was just mouthing off and fired him on the spot without realizing that he might have had a valid safety concern. The company was found liable for improper discipline and ordered to reinstate the co-worker [Sproule v. Frankel Steel Ltd.].

Solution: Make sure both workers and supervisors understand that workers must provide a reason any time they refuse work. That reason must be specific and explain exactly why the worker believes the work in question is dangerous:

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: Not Investigating the Refusal

The most frequent mistake companies make in responding to work refusals is rushing to judgment and dismissing the refusal as laziness or insubordination, which may ultimately prove to be the correct conclusion. The point is that it’s only acceptable to make that judgment after conducting a proper investigation.

Example: A production line supervisor, a burly guy with a reputation for being a bully, butted heads with a particular worker. During their most recent clash, the worker got so upset that his hands actually start to tremble. “It’s unsafe with you standing over me and hollering at me,” the worker told the supervisor. “My hands are shaking, and I may slip and cut off a finger.” He asked for the company’s elected safety representative to investigate the refusal, but the supervisor refused. In his eyes, the refusal was “totally ridiculous.” So when the worker kept refusing to get back to the job, the supervisor suspended him for two days.

An Ontario arbitrator ruled that the supervisor shouldn’t have dismissed the refusal without an investigation and decided on his own that it was unwarranted. He should have taken the refusal seriously and followed the procedures required by law. So the arbitrator upheld the grievance and rescinded the suspension [Lennox Industries (Canada) Ltd. v. United Steelworkers of America, Local 7235].

Solution: Investigate all workplace refusals, no matter how absurd or ridiculous they may appear. Your investigation doesn’t have to be extensive. Exactly what you should look at and who you should talk to will depend 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 maintenance records.

Trap #4: Dismissing Refusals Because Hazard Is Unique to Refusing Worker

In most cases, the basis for a work refusal is a condition or circumstance that would pose a danger to any worker—not just the one initiating the refusal—such as asking workers to carry out welding operations without appropriate eye and face protection. But some workers have unique, or at least unusual, circumstances that may make a condition particularly hazardous to them. And refusals by such workers may be perfectly justified even if the condition triggering them doesn’t endanger others doing the work.

Example: An unusually tall trucker refused to drive a small armoured truck because it would be dangerous: his position in the seat left very little room to manoeuvre and made it hard for him to reach the controls. The employer dismissed his refusal, noting that the truck was in good shape and didn’t pose problems for other drivers. The arbitrator determined that making this tall driver drive this small truck did pose a danger to him and so his refusal was warranted [Garda du Canada Inc. and Syndicat National des Convoyeurs de Fonds].

Solution: Recognize that refusal laws protect all workers, including ones with unique sensitivities or vulnerabilities, such as pregnancy or allergies to chemicals or substances used in the work process. As long as the danger is real, the refusal is justified and you must take steps to accommodate that worker, such as switching the chemical causing the allergic reaction for one the worker can tolerate.

Trap #5: Not Notifying & Involving All the Necessary Parties

If workers aren’t satisfied with the supervisor’s investigation and proposed resolution, they can continue to refuse to work. In this situation, the OHS laws typically require you to notify other parties, such as the JHSC, and get them involved in investigating and resolving the refusal. In addition to adding fuel to the fire, dispensing justice unilaterally without notifying the other affected parties is likely to constitute a violation of not only OHS laws but also the terms of your collective agreements.

Solution: Make sure you know who has to be notified of continuing refusals under your jurisdiction’s OHS laws and that notification is, in fact, properly provided to each of them. Parties that must be notified typically include the company’s JHSC (or health and safety representative if it’s a small company), government OHS officials and inspectors, and union representatives.

Trap #6: Not Paying Worker During Refusal

You may be able to reassign a worker who refuses work to another job until the refusal is resolved. But if reassignment isn’t possible, the worker may be unable to do any work at all while the refusal’s being investigated. This situation can be a problem given that investigations may take hours or even days. And even if the worker isn’t actually working, you generally must still pay him.

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

Solution: In most jurisdictions, a worker’s entitled to be paid while the refusal investigation is pending. So check the OHS laws of your jurisdiction to see if they require you to pay workers while their refusal is being investigated. If so, make sure the worker gets paid for that time and that those hours aren’t deducted from his or her paycheque.

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

Trap #7: Improperly Assigning a Replacement Worker to Do Refused Work

When one worker refuses, it may be tempting to assign another to do the job at issue. But most jurisdictions restrict your ability to use replacement workers to do jobs that workers refuse on safety grounds. Failing to comply with such restrictions 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. Asking a replacement worker to do the job is generally okay 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
  • Give the replacement worker the opportunity to refuse the work in question after you’ve provided this disclosure.

Trap #8: Not Addressing Hazards if Refused Work Is Dangerous

Believe it or not, refusal investigations often reveal that the worker was right to be concerned about his health and safety. Thus, the refusal helped identify a workplace hazard that might otherwise have resulted in injury. Of course, you’re then obligated to take the measures necessary to protect workers against that hazard.

Solution: Protecting workers from hazards may include implementing:

  • Engineering solutions to eliminate or control the hazard, such as ventilating a space with dangerous concentrations of airborne flammable or explosive substances;
  • Administrative controls to work around the hazard, such as not conducting certain operations in combustible spaces; and/or
  • The use of PPE to protect workers exposed to the hazard, such as mandatory use of respirators.

BOTTOM LINE

Refusals to perform dangerous work can be extremely troublesome if they’re not properly handled. The good news is that establishing and implementing proper investigation and response procedures will eliminate the disruption and liability risks. Better yet, getting your refusal response house in order will enable you to identify and correct work hazards before they lead to fatalities, injuries and illnesses.

SHOW YOUR LAWYER

Ferrusi v. Treasury Board (Canada Border Services Agency), [2007] PSLRB 1 (CanLII), Jan. 5, 2007

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

Sproule v. Frankel Steel Ltd., [1985] CanLII 1023 (ON LRB), Aug. 27, 1985