Brian Kenny, lawyer at MacPherson Leslie and Tyerman based in Regina, fields a question from a reader
QUESTION: Employees can refuse work if they feel there is a health and safety hazard, but do they have the same rights if they perceive a threat of harassment or violence?
ANSWER: The right of employees to refuse work in the face of a perceived health and safety hazard in the workplace is enshrined in health and safety legislation in each Canadian jurisdiction.
In considering any particular work refusal situation, it is important to start with the statute in force in the particular jurisdiction and to examine the statutory rules in force pertaining to employees’ right to refuse dangerous work.
There is an observable trend among Canadian lawmakers towards expanding these statutory protections for employees to include workplace harassment and violence as health and safety concerns.
It is important, therefore, to carefully examine the legislation and regulations in force in the applicable jurisdiction to determine if a worker’s right to refuse work can extend to circumstances of perceived threat of harassment or violence.
In addition, the laws are changing in some jurisdictions. For example, Ontario’s Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, came into force on June 15, 2010.
Under the new amendments, the work refusal section of the legislation has been amended to incorporate a right to refuse work based on the conduct of other persons such that workers may refuse to work if “workplace violence is likely to endanger himself or herself.”
It is likely other Canadian jurisdictions will follow Ontario’s lead in amending laws pertaining to workplace violence. At present, however, most provincial jurisdictions have only limited statutory rules on the matter.
In Saskatchewan, employees may refuse to perform work where they have “reasonable grounds to believe the act or series of acts is unusually dangerous to the worker’s health or safety or the health or safety of any other person at the place of employment.”
It is reasonable to conclude, in appropriate circumstances, a violent situation or a perceived threat of violence could amount to an unusually dangerous situation so as to justify a work refusal.
On the other hand, in relation to perceived threats of harassment, it is less likely such apprehensions would give rise to circumstances whichwould be considered unusually dangerous to the worker’s health or safety.
Even so, it is possible to conceive of extreme circumstances where the perceived threat of workplace harassment could amount to an unusually dangerous circumstance.
To date, however, there has been no reported case in Saskatchewan where there has been a work refusal based on such circumstances.
It is also important to recognize when an employee is attempting to exercise the right to refuse to work for health and safety considerations, there is a process to deal with the matter.
Saskatchewan, like other jurisdictions, requires the circumstances be investigated by the workplace occupational health and safety committee. There are also provisions for investigations to be undertaken by occupational health and safety officers employed by the government of Saskatchewan in cases of work refusals as well.
The investigative processes contemplated in the legislation are intended to provide a process by which it can be determined if an employee has reasonable grounds to refuse to work based on apprehensions of health and safety risks.
An employee’s perceived threat of harassment or violence may give rise to a right to refuse work depending on the circumstances and the legislation and regulations in force in the particular jurisdiction. It is important to be aware of the laws in force in an employer’s particular jurisdiction and to monitor those laws as they change over time.
There is a growing concern among Canadian lawmakers to ensure occupational health and safety legislation and regulations can effectively deal with issues of workplace harassment and violence and one can reasonably expect the laws and rules will continue to expand to address these concerns.
Brian Kenny is a partner at MacPherson Leslie and Tyerman in Regina. He can be reached at (306) 347-8421 or [email protected].
ANSWER: The right of employees to refuse work in the face of a perceived health and safety hazard in the workplace is enshrined in health and safety legislation in each Canadian jurisdiction.
In considering any particular work refusal situation, it is important to start with the statute in force in the particular jurisdiction and to examine the statutory rules in force pertaining to employees’ right to refuse dangerous work.
There is an observable trend among Canadian lawmakers towards expanding these statutory protections for employees to include workplace harassment and violence as health and safety concerns.
It is important, therefore, to carefully examine the legislation and regulations in force in the applicable jurisdiction to determine if a worker’s right to refuse work can extend to circumstances of perceived threat of harassment or violence.
In addition, the laws are changing in some jurisdictions. For example, Ontario’s Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, came into force on June 15, 2010.
Under the new amendments, the work refusal section of the legislation has been amended to incorporate a right to refuse work based on the conduct of other persons such that workers may refuse to work if “workplace violence is likely to endanger himself or herself.”
It is likely other Canadian jurisdictions will follow Ontario’s lead in amending laws pertaining to workplace violence. At present, however, most provincial jurisdictions have only limited statutory rules on the matter.
In Saskatchewan, employees may refuse to perform work where they have “reasonable grounds to believe the act or series of acts is unusually dangerous to the worker’s health or safety or the health or safety of any other person at the place of employment.”
It is reasonable to conclude, in appropriate circumstances, a violent situation or a perceived threat of violence could amount to an unusually dangerous situation so as to justify a work refusal.
On the other hand, in relation to perceived threats of harassment, it is less likely such apprehensions would give rise to circumstances whichwould be considered unusually dangerous to the worker’s health or safety.
Even so, it is possible to conceive of extreme circumstances where the perceived threat of workplace harassment could amount to an unusually dangerous circumstance.
To date, however, there has been no reported case in Saskatchewan where there has been a work refusal based on such circumstances.
It is also important to recognize when an employee is attempting to exercise the right to refuse to work for health and safety considerations, there is a process to deal with the matter.
Saskatchewan, like other jurisdictions, requires the circumstances be investigated by the workplace occupational health and safety committee. There are also provisions for investigations to be undertaken by occupational health and safety officers employed by the government of Saskatchewan in cases of work refusals as well.
The investigative processes contemplated in the legislation are intended to provide a process by which it can be determined if an employee has reasonable grounds to refuse to work based on apprehensions of health and safety risks.
An employee’s perceived threat of harassment or violence may give rise to a right to refuse work depending on the circumstances and the legislation and regulations in force in the particular jurisdiction. It is important to be aware of the laws in force in an employer’s particular jurisdiction and to monitor those laws as they change over time.
There is a growing concern among Canadian lawmakers to ensure occupational health and safety legislation and regulations can effectively deal with issues of workplace harassment and violence and one can reasonably expect the laws and rules will continue to expand to address these concerns.
Brian Kenny is a partner at MacPherson Leslie and Tyerman in Regina. He can be reached at (306) 347-8421 or [email protected].
