While the Minister’s investigation ison, the employee can continue the refusal to work; and the employer may bringin another qualified employee to do the same work.
The employer has to informthis employee of the continued refusal and the reasons for it and assure that he/shewill not be exposed to danger. If there is a previous or ongoing investigationfor this employer which involves almost the same issues, the Minister canconsider whether or not to trust the previous investigation findings. TheMinister can also consider if this investigation can be combined with anyongoing investigation so that a single decision can be handed out. The Ministerwill then conduct an investigation and will give a written report with the decisionto the employer and the employee.
If the Minister determines that unsafesituation exists at work, the Minister will issue appropriate directions regardingthe work. The employee can continue to refuse to work until the workingsituations have met the terms as in the directions or until they are modifiedor cancelled. If the Minister decides that thedanger exists but the refusal cannot be permitted under ss. 128.
(2) “as it putslives, health or safety of another person directly in danger or the danger is anormal condition of employment”, then the Minister should provide this decisionin writing, and the employee is no longer entitled to refuse work.If the Minister decides that thedanger does not exist, then the Minister should provide this decision inwriting, and the employee is no longer entitled to refuse work.After providing the Minister’swritten decision, a copy of the written report will also be provided to theemployee, employer and the work place committee or representative within 10days of its completion.If the employee is not happy with theMinister’s decision that no danger exists or the refusal is not permitted underss.
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128.(2), the employee can appeal in writing to an appeals officer within 10days after receiving the decision.If any employer, employee or tradeunion is not happy with the Minister’s direction, they can appeal in writing toan appeals officer within 30 days after the direction was issued. Discipline for refusingwork believed to be unsafeAn employee cannot be disciplined ordismissed if the refusal to dangerous work was in compliance with thelegislation and regulations. However, if the employer can prove that anemployee has deliberately misused his right to refuse dangerous work,disciplinary action can be taken against that employee, once all theinvestigations and appeals have been completed. The reasons for thedisciplinary action should be provided in writing to the employee within 15working days of the employee’s request.
The employee can make a complaintregarding the disciplinary action within 90 days to the Canada IndustrialRelations Board. If the employee is a public servant, he/she can complain tothe Public Service Labour Relations Board (PSLRB). If the board receives acomplaint that an employee is penalized for exercising the right to refuseunsafe work, then the employer will have to demonstrate before the Board thatthe decision is not related to the incident of refusing work by the employee. Thefinal decision will be taken by the Board or PSLRB; but, if the employee is notsatisfied, he/she can appeal the Board’s decision to the Federal Court.
ConclusionDespite the Federal and Provinciallegislations that governs workplace health and safety in Canada, every yearmany Canadians are still injured and killed in their workplace. Safety ofworkers should be enforced by the government and laws should encourageemployers to act more responsibly. Right to refuse dangerous work has proved asa deterrent in Canadian workplace against unsafe work practices. Majority ofCanadian workers are shielded against acts of retaliation by employers fordeclining to perform unsafe work.
The most glaring inadequacy in this legislationis the lack of standards to determine the rationality of any worker’s claim ofan unsafe work. Employers are at time forced to retrieve due to the stringentlegislation which seems to favour the worker. Legislations are meant to befollowed and not to be bypassed.
