Canadian HR Reporter

CANADIAN HR REPORTER APRIL 2019 24 FEATURES HEALTH AND SAFETY Understanding the right to refuse work How should an employer respond if an employee raises safety concerns? By Patrick Essiminy and Pierre-Luc Benoit T he right for a worker to refuse to work if she be- lieves there is a danger relating to health and safety in the workplace is a topic that has been discussed on several oc- casions since the Quebec Act respecting occupational health and safety was enacted in 1979. e act provides for a specific process that must be followed by employers confronted with the exercise of a right to refuse work. Further, the act provides for ad- ministrative or penal recourses against the employer in the event of non-compliance. Right to refuse to work Article 12 of the act provides that a worker has a right to refuse to perform particular work if he has reasonable grounds to believe that the performance of that work will expose him to a danger to his health, safety or physical well-be- ing, or will expose another person to a similar danger. e conditions for the legiti- mate exercise of the right of re- fusal include the following: • e person exercising the right must be a worker pursuant to the act. • e work must have been re- quested by the employer. • e worker must have reason- able grounds to believe that the performance of particular work will expose her to a danger. • e conditions of the work be- ing requested are unreasonable or abnormal. • e right of refusal cannot put the life, health, safety or physical well-being of another person in immediate danger. • e worker must immediately inform the employer of the ex- ercise of the right of refusal. Considering the above, it is important to define the general obligations of both the worker and the employer in the context of a work refusal. First, given that workers have a legal right to refuse to work in certain circumstances, an employer cannot simply reject a worker's allegation that the work constitutes a danger, without first examining the situation. If a worker simply refuses to perform certain tasks without al- leging any specific danger, this will not be considered as the exercise of the right to refuse to work un- der the act and may be considered insubordination. Process, possible outcomes Upon being informed of the ex- ercise of a right of refusal, the employer must proceed with an examination of the situation in conjunction with the designated safety representative to deter- mine if there is a danger that jus- tifies the work refusal. Further to this examination, several scenar- ios are possible: • If the employer and the safety representative agree that there is a danger, they will work to- gether to eliminate this danger, and corrective measures must be put in place. • If the employer and the safety representative agree that there is no danger, the work can re- sume. If the worker maintains the refusal, notwithstanding the findings of the employer and the safety representative, he can re- quest the intervention of an in- spector of the Commission des normes, de l'équité et de la santé et sécurité du travail (CNESST). In the interim, and unless oth- erwise ordered by the CNESST, the employer can decide to have the work performed by another worker, subject to informing this other worker that a work refusal was exercised, along with the reasons alleged by the first worker. • If there is a disagreement be- tween the employer and the safe- ty representative, an inspector of the CNESST will intervene. During the time of the exami- nation of the reasons relating to the work refusal, the worker is deemed to be at work, and must therefore be compensated. In turn, the act expressly allows the employer to temporarily assign the worker to any other task that he is reasonably able to accom- plish; therefore, the worker must perform this assignment. Further, the work that is sub- ject to the work refusal cannot be performed by any other per- son until (a) the employer and the safety representative are in agree- ment that there is no danger; and (b) the employer and the safety representative are in agreement that the work refusal is reason- able, but only as it relates to the particular case of the worker that exercised the work refusal; or (c) an inspector of the CNESST has rendered a decision on the merits of the work refusal. What is a danger? Among the concepts that are of- ten subject of debate in cases of work refusal are the concepts of "danger." As we know, the act does not specifically define the concept of danger and, therefore, case law has given that concept its ordinary meaning. Can disciplinary measures be imposed on the worker? In the context of a work refusal, employers are often reflecting on whether specific measures can be imposed on the worker who exer- cised the right of refusal. In this regard, it is important to remind employers that the act expressly states that no employer can dis- miss, suspend, transfer or take any other reprisal against a worker on the grounds that she exercised a right to refuse to work. However, case law has recog- nized that when a worker exer- cises a right to refuse to work not on the basis of a reasonable ap- prehension of danger, but rather in a manner that is abusive, in bad faith, or in breach of the ex- ceptions contained in the act, an employer can impose a disciplin- ary measure on the worker, the severity of which will depend on the specific circumstances. Employers governed by Canada Labour Code It is important to note that the work refusal process for employ- ers that are federally regulated, such as interprovincial transpor- tation companies, radio broad- casting stations and banks, is governed by Part II of the Canada Labour Code and not by the Que- bec Act respecting occupational health and safety. While the gen- eral underlying principles under the two acts are fairly similar, the process that must be followed by the employee and the employer and their respective obligations are different. For example, upon being in- formed of the exercise of right of refusal, the employer must immediately investigate the situation in the presence of the worker. Once the employer's in- vestigation has been concluded, the employer must prepare a written report setting out the re- sults of the investigation. If, following the investigation, the employer agrees that a danger exists, the employer must take immediate action to protect workers from the identified danger. If the worker disagrees with the employer's findings that no danger exists, he must immedi- ately report the disagreement to the employer and the workplace committee or representative. e committee or representative will then investigate the matter and prepare a written report to the employer, setting out its findings and recommendation. e employer must then decide whether a danger exists. If the worker disagrees with the employ- er's decision, he must inform the employer, and the employer must immediately inform the Min- istry of Labour and the workplace committee or representative. e ministry will then investigate the merits of the work refusal. Both in the Employment & La- bour Group at Stikeman Elliott in Montreal, Patrick Essiminy (pessiminy@stikeman.com) is a part- ner and head of the group, and Pierre- Luc Benoit (plbenoit@stikeman.com) is an associate. Credit: Aisyaqilumaranas/Shutterstock

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