Employee’s refusal to work for safety reasons

Question: If an employee refuses to work on the basis it is dangerous causing delays and financial loss, but an official investigation determines there is no danger, can the employer take disciplinary action?

Answer: Most employees are exposed to certain types of dangers or hazards that are specific to the type of job the employee performs. While health and safety legislation provides a statutory right to refuse unsafe work, the same legislation also qualifies the threshold at which normal dangers or hazards associated with a job become unsafe.

For example, in Alberta, an employee has the right to refuse to perform imminently dangerous work. “Imminent danger” is defined in the province’s Occupational Health and Safety Act as “a danger that is not normal for that occupation or one which someone working that job would not normally accept.” Thus, what is “dangerous work” is a relative determination according to the occupation or work being performed. Similarly, in New Brunswick, Manitoba, Newfoundland and Labrador, Saskatchewan, and the Northwest Territories, the right to refuse unsafe work is limited to work that poses an “unusual danger” to an employee; and in British Columbia, work refusals are subject to the test of “undue hazard”.

Employees, in association with the right to refuse dangerous work, also have the right to refuse such work without the fear of reprisal from the employer. In fact, regardless of whether an investigation determines there is no danger to the employee, occupational health and safety legislation has raised a presumption against the employer for any reprisal including demotion, dismissal, suspension, deduction of wages or benefits, job transfers, change in hours of work, or reprimand.

Since employees and employers often disagree about whether work is dangerous, the employer will often view the refusing employee as insubordinate. However, if the worker is acting in compliance with the workplace health and safety legislation, such as good faith reporting of a safety concern, it is imperative that the employer not take any disciplinary action against the worker.

Notably, a worker who reasonably believes that she has been disciplined for raising a safety concern may use the grievance procedure under the collective agreement, if any, or file a complaint before the appropriate federal or provincial occupational health and safety board or administrative body. If it is ultimately found that the complainant employee was acting in accordance with the statutorily proscribed occupational health and safety procedure, and was disciplined for raising a safety concern or refusing to accept dangerous work, then the employee may be entitled to reinstatement, cessation of the disciplinary action, payment of lost wages, and removal of any reprimand or other reference to the matter from the employee’s employment record.

A work refusal, however, is improper where the employee’s refusal to work is not based on legitimate health and safety concerns, and when the worker has not followed the proper procedures required in refusing to do unsafe work. An employee’s refusal would also be improper if it is frivolous or the reasons amount to insubordination, as was the case in McGregor v. Brunswick Mining & Smelting Corp.

For more information see:

• McGregor v. Brunswick Mining & Smelting Corp., 1991 CarswellNB 399 (N.B. Q.B.).