Misunderstandings by employees can lead to complications
Before the Winnipeg Regional Health Authority (WRHA) overhauled its work refusal procedure last year, the seldom-used policy often left supervisors stumped when it was needed.
WRHA staff were` expected to follow provincial laws when a refusal was called in, but Manitoba’s legislative language could be intimidating for staff.
“As with any policy, sometimes the wording is a little bit confusing,” says Shaun Haaf, regional director of occupational and environmental health and safety at WHRHA.
Many WHRA staff work in the homes of clients, so the importance of clear communication is relevant on a daily basis. To clarify the procedure for a work refusal, the health authority created a checklist for supervisors to use when a refusal was called in.
“Because they aren't dealing with right to refuse on a regular basis, it just makes it a lot easier to have a checklist to follow,” Haaf says. “Our safety co-ordinator went through the different steps that the supervisors are supposed to follow from the policy and put it in easy to understand language.”
Spending the extra time to create the checklist has already saved time for supervisors and workers.
“It has made a lot of things easier,” she says. “We don't get as many questions as to what is supposed to be done when a worker does refuse dangerous work.”
Having a clear work refusal policy supervisors can understand is important, says Lorna Pawluk, a lawyer with Bernard and Partners in Vancouver.
“More often than not, it's the failure to follow the procedure that gets the employer into trouble,” she says. “Not the disagreement about safety.”
In January 2011, an arbitrator sided with an employee involved in a work refusal grievance for this very reason.
A security guard working for Garda, a Toronto-based security company, complained his bulletproof vest zipper was broken and, as a result, it could not be worn safely.
The guard’s supervisor offered up a vest from a “used part-time pool,” but the guard refused the vest, citing fitting and hygienic reasons. In turn, the guard suggested he do work that did not require the use of a vest. Management determined this was not acceptable. The guard was sent home without pay for the day without a worker representative being present in person.
The arbitrator sided with the guard because Garda management did not follow Ontario’s work refusal process, which requires a representative from the organization’s joint health and safety committee to be present during a work refusal investigation. Subsequently, a Ministry of Labour inspector must be called in to determine whether the circumstances under which the worker has been directed to work constitutes the “likelihood of endangerment of the worker.”
“What the decision-maker said was that the employer failed to carry out the investigation in the presence of one of the worker representatives identified in the legislation,” Pawluk says. “The worker was consulted on the phone, but not physically present.”
While Pawluk believes Ontario legislation should be inclusive of consultations over the telephone or the Internet, this decision demonstrates the importance that all staff must clearly understand their duties when it comes to specific policies like this, she says.
Clear policy important
Staff at the WHRA have a much better understanding of their role in a refusal since the organization finished the policy revision last spring.
“If they do identify a hazard, they notify a supervisor and we then update the safety assessment form tool, as well as update the safe visit plan,” Haaf says.
Prior to the initial visit, a safe visit plan is created for every worksite a WHRA worker has to visit. The safety assessment form tool is a frequently updated resource for employees to review before visiting a site for the first time. These items can be used by staff to better understand any site-specific difficulties.
“If (the work refusal is) related to a discussion that needs to be had with the family or with the client regarding some behaviour, then the supervisor would go out to the house and have that conversation with them,” she says.
If a worker requires something like a protective glove before completing work, then the supervisor would be charged with making sure the worker gets the glove.
But issues aren’t always that easy, Haaf says.
“If, for instance, we put something in place and the refusing employee still doesn't feel that it has been resolved to their satisfaction, then at that point the department of labour and family services (is contacted),” she says. “The supervisor is still involved because, depending on what the hazard is, the supervisor is going to have to end up implementing the corrective action.”
The procedure is similar from coast to coast.
“The provinces will have basically the same procedure,” says Pawluk. “There will be a requirement for some kind of investigation and, eventually, if you can't settle it, you bring in some kind of an inspector. But the details will vary from province to province.”
Fearing violence
When Ontario introduced Bill 168, which amended the Occupational Health and Safety Act, changes to the province-wide work refusal process were made.
“Previously, it was just to do with equipment, machines, devices, or some kind of physical condition in the workplace which the worker thought was likely to endanger themselves,” says Ben Ratelband, a labour and employment lawyer with McCarthy Tétrault in Toronto.
The rules for a work refusal are now more inclusive, he says.
“Bill 168 added a subsection that also said a worker could refuse to work where he or she had reason to believe that workplace violence is likely to endanger himself or herself,” he says.
Alberta, British Columbia, Manitoba, Nova Scotia and Saskatchewan also have legislation outlining an obligation for employers to prevent workplace violence, including undertaking violence risk assessments, investigating events of workplace violence and providing training in policies and procedures as a way to prevent workplace violence.
