Work Refusal

Purpose and Application

Section 43 of the Occupational Health and Safety Act (OHSA) provides each worker, including an emergency services’ worker under non-emergency conditions, the right to refuse work or to do particular work where the worker has reason to believe that any of the following conditions exist:

  • any equipment, machine, device or thing the worker is to use or operate is likely to endanger themself or another worker
  • the physical condition of the workplace or part thereof in which the worker works or is to work is likely to endanger a worker
  • workplace violence is likely to endanger the worker, or
  • any equipment, machine, device or thing the worker is to use or operate or the physical condition of the workplace or the part thereof in which the worker is to work is in contravention of this Act or the regulations, and such contravention is likely to endanger themself or another worker.

The City of Toronto recognizes and respects this right. This policy is intended to provide a consistent process for responding appropriately to work refusals. It applies to all City of Toronto employees.

[Note: Emergency services’ workers (fire fighters, paramedic services personnel and health care workers) have the right to refuse work with limitations. The right to refuse work does not apply when the circumstance described above is inherent in the worker’s work or is a normal condition of the worker’s employment or if the worker’s refusal to work would directly endanger the life, health or safety of another person.]

Definitions

Employer

As defined under the OHSA :

A person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.

Health and Safety Representative

A Health and Safety Representative (HSR) is required in most workplaces with 6-19 workers. The role of the HSR is to support health and safety in the workplace.

Joint Health and Safety Committee

A Joint Health and Safety Committee (JHSC) is an advisory group made up of employers and employees working together to improve occupational health and safety in their workplace. JHSCs are required for most workplaces with 20 or more workers regularly employed.

Supervisor

As defined under the OHSA :

A person who has charge of a workplace or authority over a worker.

Worker

As defined under the OHSA, any of the following:

  1. A person who performs work or supplies services for monetary compensation.
  2. A secondary school student who performs work or supplies services for no monetary compensation under a work experience program authorized by the school board that operates the school in which the student is enrolled.
  3. A person who performs work or supplies services for no monetary compensation under a program approved by a college of applied arts and technology, university, private career college or other post-secondary institution.

Responsibilities

Section 28(1)(c) and (d) of the Occupational Health and Safety Act requires that a worker shall:

  • report to their employer or supervisor the absence of, or defect in, any equipment or protective device of which the worker is aware and which may endanger themself or another worker; and
  • report to their supervisor any contravention of the Act or the regulations or the existence of any hazard of which he or she knows.

Section 27(2)(c) states that a supervisor shall take every precaution reasonable in the circumstances for the protection of a worker.

Therefore, prior to refusing work, a worker who identifies a concern with respect to a potential safety hazard must immediately bring it to the attention of their supervisor and together they should try to resolve the concern, utilizing the principles of the Internal Responsibility System.

If the worker and the supervisor are unable to resolve the concern, then the worker can exercise their right to refuse work under Section 43 of the Act and the procedures outlined below should be followed.

Standard Procedures

Stage 1

  1. The worker must advise their supervisor or employer that they are refusing to work under the Occupational Health and Safety Act and state the reasons for the work refusal. If there is disagreement or uncertainty if the threshold of refusal condition is met, proceed with the work refusal process.
  2. The supervisor must immediately:
    • notify a worker certified member, if possible, (otherwise a non-certified worker member) of the appropriate joint health and safety committee (JHSC) or health and safety representative (HSR) of the refusal
    • arrange for the JHSC Member to be present during the investigation
    • initiate the investigation
  3. The City and unions have health and safety specialists/coordinators who can assist during work refusals. The supervisor, worker or JHSC Member/HSR should notify these specialists/coordinators (People & Equity, divisional and union) via email and phone call and may request their assistance during the work refusal investigation.
  4. Until the investigation by the supervisor, worker and JHSC Member/HSR begins, the refusing worker is not to be assigned alternate work. No other workers are to be assigned to that work.
  5. The refusing worker is to be a direct participant in all stages of the investigation and therefore remain in a safe place that is as near as reasonably possible to their workstation and where the investigation will take place.
  6. If, during the investigation, a potential measure is identified that requires additional resources (e.g., occupational hygiene assessment, engineering assessment) and time is needed to access these resources, the refusing worker may be reassigned alternate, safe, non-refused work pending the results. This assumes the agreement of the parties involved in the investigation (i.e., supervisor, worker and JHSC Member/HSR)
  7. If this investigation results in resolution of the refusal issue, the investigation will be documented using the Work Refusal Investigation Form and signed off by the supervisor and worker JHSC Member/HSR that participated in the investigation.
  8. If the worker is not satisfied with the proposed resolution and has reasonable grounds to believe the work refusal is still justified, proceed to Stage 2 of this procedure.

Stage 2

  1. The supervisor or designate will immediately notify the Ministry of Labour, Immigration, Training and Skills Development (MLITSD) of the work refusal.
  2. The MLITSD inspector will conduct an investigation. If the investigation by the MLITSD is delayed, the supervisor, or designate will notify the parties involved in the Stage 1 investigation of the pending Ministry visit.
  3. While the investigation is ongoing and pending the decision from the MLITSD, the worker will:
    • remain, during their normal working hours, in a safe place that is as near as reasonably possible to their workstation and available to the inspector for the purposes of the investigation or
    • be assigned, subject to the provisions of a collective agreement, if any, to reasonable alternative work or given other directions.
  4. While the investigation is ongoing and pending the decision from the MLITSD another worker may be asked to perform the refused work as long as they are fully advised of the reasons for the work refusal and the status of the investigation, in the presence of the worker member of the JHSC/HSR. If possible, the JHSC member should be a certified worker member.
  5. Following the investigation, the MLITSD inspector will provide a decision on whether the circumstance on which the refusal was based is likely to endanger the worker or another person. Copies of the decision will be posted in the appropriate workplace(s) and distributed to all people who were involved in the investigation, the JHSC or HSR, as well as divisional senior management and union office health and safety officers/coordinators.
  6. Based on the MLITSD’s decision, the worker returns to work, either immediately or after the employer has complied with any order(s) to provide a safe workplace.

The MLITSD report, along with any internal report signed by the JHSC Member, should be tabled at the next health and safety committee meeting. Any MLITSD report must be posted in a prominent location in the workplace, as required. A copy of all reports must be forwarded to People and Equity – Occupational Health and Safety.

The Ministry’s decision can be appealed in accordance with Section 61 of the Occupational Health and Safety Act.

This Occupational Health and Safety Act and this policy prohibit reprisals against employees for exercising their right to refuse unsafe work.

Authority

Occupational Health and Safety Act (R.S.O. 1990, c.0.1)

Endorsed by:

Occupational Health and Safety Coordinating Committee (OHSCC),
June 2007

Approved by

City Manager

Date Approved

July 25, 2007

Reviewed and revised by:

OHSCC, February 2009 and November 2014, December 2023

Related links

Occupational Health and Safety Act