Work Refusals

The Occupational Health and Safety Act enshrines three fundamental rights for workers:

  1. The Right to Know

  2. The Right to Participate

  3. The Right to Refuse

If you have reason to believe that you and/or other workers are at risk of injury or illness i your workplace, OECTA encourages you to exercise your right under the Occupational Health and Safety Act to initiate a work refusal.

You cannot be subject to any reprisal or threat of reprisal by the school board or the administrator for exercising your right to refuse work that you believe is unsafe.

It is highly recommended that your school health and safety representative and the local unit office be contacted before initiating a work refusal

Please call the office at (905) 574-6483 or email healthandsafety@oectahw.com for guidance.

FOLLOW THESE STEPS

  1. Advise the Health and Safety Representative at your school that you are going to initiate a work refusal and contact your local unit immediately.

OECTA Hamilton-Wentworth (905) 574-6483

  1. Inform your school administrator (Principal or Vice-Principal) that you are initiating a work refusal under the Occupational Health and Safety Act (OHSA).

    • Say the following, "I am initiating a work refusal based on a concern for my health and safety (or for the health and safety of other workers)."

    • It is important that your students are safe before initiating a work refusal (see Regulation 857 below). This can be done by initiating the work refusal before the students arrive at school so the school administration can ensure proper supervision of students OR you can take the students to the school office with you so they can be supervised by an administrator when you initiate the work refusal.

  2. Once you have informed your school administrator of your work refusal, you must remain in a safe place that is as near as reasonably possible to your workstation (eg, school parking lot if the building is unsafe), and remain available to the administrator for the purposes of the investigation, until the investigation is complete.

STAGES OF A WORK REFUSAL

A work refusal will result in an investigation that could have two stage:

Stage 1

  • The investigation is usually conducted by the site supervisor (Principal or Vice-Principal).

  • The investigation should happen immediately in the presence of the worker and a Joint Health and Safety Committee member who represents workers (if possible, the certified worker member).

  • If the work refusal can be successfully and appropriately addressed in Stage 1, then the worker can return to their duties

  • If the worker is not satisfied with the investigation and the proposed solution, then the investigation enters Stage 2.

Stage 2

  • A Ministry of Labour, Training and Skills Development inspector is summoned to the school to investigate the work refusal in consultation with the worker and Joint Health and Safety Committee member where applicable.

Results

  • The MLTSD inspector must decide whether the circumstance(s) that led to the work refusal are likely to endanger the worker (or another person).

  • The inspector's decision must be given, in writing, to the worker, the employer, and the JHSC.

  • If the inspector finds that the circumstance is not likely to endanger anyone, the reusing worker is expected to return to work.

  • If the inspector finds that the circumstance is likely to endanger the worker or another person, the inspector will typically order the employer to remedy the hazard before work can resume.

The Occupational Health and Safety Act states...


Crown and other Acts

Crown

2 (1) This Act binds the Crown and applies to an employee in the service of the Crown or an agency, board, commission or corporation that exercises any function assigned or delegated to it by the Crown.

Other Acts

(2) Despite anything in any general or special Act, the provisions of this Act and the regulations prevail. R.S.O. 1990, c. O.1, s. 2.


What this means...

  • The Occupational Health and Safety Act applies to almost every worker, supervisor, employer and workplace in Ontario, including workplace owners, constructors and suppliers of equipment or materials to workplaces covered by the Act.

  • The OHSA prevails over other laws. It must be followed, other laws giving deference to the OHSA.

The Occupational Health and Safety Act states...

Refusal to work

43 (3) A worker may refuse to work or do particular work where he or she has reason to believe that,

(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;

(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself;

(b.1) workplace violence is likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker. R.S.O. 1990, c. O.1, s. 43 (3); 2009, c. 23, s. 4 (2).

What this means...

  • If a worker has a bona fide belief that the work they are being asked to complete could cause injury or illness to their person, then the worker has the right to refuse to complete the work.

  • The belief of unsafe work can include safety concerns relating to:

    • dangerous equipment, machine, tools, or other device or thing that a worker might use or operate,

    • the physical environment, or part thereof, the worker occupies, and/or

    • violence in the workplace.


IT IS IMPORTANT THAT TEACHERS ENSURE THAT THEIR STUDENTS ARE SAFE BEFORE REFUSING UNSAFE WORK. (REGULATION 857)

The Occupational Health and Safety Act states...

Report of refusal to work

43 (4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of the refusal to the worker’s employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them,

who shall be made available and who shall attend without delay. R.S.O. 1990, c. O.1, s. 43 (4).

What this means...

  • When a work refusal is initiated, the worker must inform the employer of the intent to initiate a work refusal under the Occupational Health and Safety Act.


IT IS IMPORTANT THAT TEACHERS ENSURE THAT THEIR STUDENTS ARE SAFE BEFORE REFUSING UNSAFE WORK. (REGULATION 857)

The Occupational Health and Safety Act states...

Worker to remain in safe place and available for investigation

43 (5) Until the investigation is completed, the worker shall remain,

(a) in a safe place that is as near as reasonably possible to his or her work station; and

(b) available to the employer or supervisor for the purposes of the investigation. 2009, c. 23, s. 4 (3).



What this means...

  • Once you have informed your school administrator of your work refusal, you must remain in a safe place that is as near as reasonably possible to your workstation (eg, school parking lot if the building is unsafe), and remain available to the administrator for the purposes of the investigation, until the investigation is complete.


IT IS IMPORTANT THAT TEACHERS ENSURE THAT THEIR STUDENTS ARE SAFE BEFORE REFUSING UNSAFE WORK. (REGULATION 857)

The Occupational Health and Safety Act states...

Refusal to work following investigation

43 (6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of the refusal to work or do particular work continues to be likely to endanger himself, herself or another worker;

(b) the physical condition of the workplace or the part thereof in which he or she works continues to be likely to endanger himself or herself;

(b.1) workplace violence continues to be likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention continues to be likely to endanger himself, herself or another worker,

the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof. R.S.O. 1990, c. O.1, s. 43 (6); 2009, c. 23, s. 4 (4).

What this means...

  • After the school supervisor (Principal or Vice-Principal) completes the inspection, if the worker still has a legitimate and bona fide concern for their safety, then the employer will contact the Ministry of Labour, Training and Skills Development to request an inspector to visit the school to conduct an investigation.

  • The inspector will visit the building to complete an investigation as part of Stage 2 of a work refusal.


IT IS IMPORTANT THAT TEACHERS ENSURE THAT THEIR STUDENTS ARE SAFE BEFORE REFUSING UNSAFE WORK. (REGULATION 857)

The Occupational Health and Safety Act states...

Investigation by inspector

(7) An inspector shall investigate the refusal to work in consultation with the employer or a person representing the employer, the worker, and if there is such, the person mentioned in clause (4) (a), (b) or (c). 2001, c. 9, Sched. I, s. 3 (11).

Decision of inspector

(8) The inspector shall, following the investigation referred to in subsection (7), decide whether a circumstance described in clause (6) (a), (b), (b.1) or (c) is likely to endanger the worker or another person. 2009, c. 23, s. 4 (5).

Idem

(9) The inspector shall give his or her decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4) (a), (b) or (c). R.S.O. 1990, c. O.1, s. 43 (9).

Worker to remain in safe place and available for investigation

(10) Pending the investigation and decision of the inspector, the worker shall remain, during the worker’s normal working hours, in a safe place that is as near as reasonably possible to his or her work station and available to the inspector for the purposes of the investigation. 2009, c. 23, s. 4 (6).

Exception

(10.1) Subsection (10) does not apply if the employer, subject to the provisions of a collective agreement, if any,

(a) assigns the worker reasonable alternative work during the worker’s normal working hours; or

(b) subject to section 50, where an assignment of reasonable alternative work is not practicable, gives other directions to the worker. 2009, c. 23, s. 4 (6).

What this means...

  • If a worker is unsatisfied with the inspection of the school supervisor during Stage 1 of an investigation, then the Ministry of Labour, Training and Skills Development will conduct an inspection.

  • The worker will remain in a location reasonably close to their workstation during the investigation.

  • The inspector will make a determination regarding the circumstances, producing a written decision.


PLEASE NOTE

The Act prohibits any person from obstructing, hindering, molesting or interfering with an inspector or attempting to do so while the inspector is exercising powers or performing duties under the Act,[subsection 62(1)]. Moreover, the Act requires every person to assist an inspector in the exercise of his or her powers and duties and in the execution of a search warrant.

It is an offence to interfere in any way with an inspector. This includes giving false information, failing to give required information or interfering with any monitoring equipment left in the workplace.


IT IS IMPORTANT THAT TEACHERS ENSURE THAT THEIR STUDENTS ARE SAFE BEFORE REFUSING UNSAFE WORK. (REGULATION 857)

The Occupational Health and Safety Act states...

Duty to advise other workers

(11) Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the workplace or in the part of the workplace being investigated unless, in the presence of a person described in subsection (12), the worker has been advised of the other worker’s refusal and of his or her reasons for the refusal. R.S.O. 1990, c. O.1, s. 43 (11).

Idem

(12) The person referred to in subsection (11) must be,

(a) a committee member who represents workers and, if possible, who is a certified member;

(b) a health and safety representative; or

(c) a worker who because of his or her knowledge, experience and training is selected by the trade union that represents the worker or, if there is no trade union, by the workers to represent them. R.S.O. 1990, c. O.1, s. 43 (12).

Entitlement to be paid

(13) A person shall be deemed to be at work and the person’s employer shall pay him or her at the regular or premium rate, as may be proper,

(a) for the time spent by the person carrying out the duties under subsections (4) and (7) of a person mentioned in clause (4) (a), (b) or (c); and

(b) for time spent by the person carrying out the duties under subsection (11) of a person described in subsection (12). R.S.O. 1990, c. O.1, s. 43 (13).

What this means...

  • While an investigation in underway, no worker can be assigned to complete the work which precipitated the original work refusal unless the worker has been told about the refusal and the reasons for it.

    • The worker must be told about the refusal and its reasons in the presence of a JHSC member (preferably certified) who represents workers OR another worker who holds applicable knowledge, experience, or training and is selected by the union to represent workers.

  • A worker who had initiated a work refusal will continue to be paid throughout the refusal process.


IT IS IMPORTANT THAT TEACHERS ENSURE THAT THEIR STUDENTS ARE SAFE BEFORE REFUSING UNSAFE WORK. (REGULATION 857)

Regulation 857 states...


The following conditions and limitations apply to the application of the Act to teachers:

1. A principal, vice-principal or teacher appointed by an employer of teachers to direct and supervise a school or an organizational unit of a school is a person who has charge of a school or authority over a teacher and exercises managerial functions.

2. An employer of teachers that establishes and maintains one joint health and safety committee for all its teachers shall be deemed to have complied with subsection 9 (2) of the Act with respect to all its teachers but nothing in this paragraph requires the discontinuance of any joint health and safety committee or committee of a like nature in existence on the 1st day of October, 1979 or prevents the employer from establishing more than one joint health and safety committee for its teachers.

3. Part V of the Act does not apply to a teacher where the circumstances are such that the life, health or safety of a pupil is in imminent jeopardy. R.R.O. 1990, Reg. 857, s. 3.


What this means...

  • Teachers cannot abandon their post. Their students' safety must be taken into consideration before commencing a work refusal.

  • This can be done by initiating the work refusal before the students arrive at school so the school administration can ensure proper supervision of students OR you can take the students to the school office with you so they can be supervised by an administrator when you initiate the work refusal.

NO REPRISALS

  • No worker in Ontario can face any sort of reprisal for acting upon a matter of health and safety.

  • The Occupational Health and Safety Act strictly forbids it.

The Occupational Health and Safety Act states...


No discipline, dismissal, etc., by employer

50 (1) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act. R.S.O. 1990, c. O.1, s. 50 (1).

Arbitration

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint. 1998, c. 8, s. 56 (1).


What this means...

Under section 50 of the OHSA, an employer cannot...

  • dismiss (or threaten to dismiss) a worker

  • discipline or suspend a worker (or threaten to do so)

  • impose (or threaten to impose) any penalty upon a worker, or

  • intimidate or coerce a worker…

...because a worker has...

  • followed the OHSA and regulations

  • exercised rights under the OHSA, including the right to refuse unsafe work

  • asked the employer to follow the OHSA and regulations.

A worker also cannot be penalized for...

  • providing information to a Ministry of Labour inspector

  • following a Ministry of Labour inspector’s order, or

  • testifying at a hearing about OHSA enforcement

    • in court

    • before the Ontario Labour Relations Board

    • before the Human Rights Tribunal of Ontario or similar organization

    • at a coroner’s inquest

    • at a grievance arbitration, and

    • in certain other hearings.

*Source: https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-vi-reprisals-employer-prohibited