| In This Issue |
| Refusal of Unsafe Work |
| Updated WorkSafeBC Forms |
Questions
If you have questions about the issues raised in this newsletter, or any health, safety or wellness issue, please contact Mark Grabas at 604.730.4509 or markg@bcpsea.bc.ca |
Refusal of Unsafe Work
Once just the realm of safety professionals, district administrators at all levels are now confronted with the question, “What do I do now?” when a worker invokes their “right” to refuse unsafe work.
What do you do now?
The refusal of unsafe work is not so much a “right” as a procedural policy to determine if the work is unsafe. The policy can be found in sections 3.12 and 3.13 of the Occupational Health and Safety Regulation (OHSR). The policy sets out clear, discrete steps that must be followed by both the worker asserting a claim of unsafe work and the employer.
On what basis can a worker refuse unsafe work?
What constitutes unsafe work is not clearly defined. As a result, the determination will be very fact dependent and case-specific. Basically, it is a reasonable belief of the worker who must carry out the work that the work is unsafe. That worker must have a reasonable belief that the work (either a work process or the operation of equipment) would create an undue hazard to the health and safety of any person. In general, the threshold of what constitutes a reasonable belief is quite low.
What is “reasonable”?
It is illustrative to consider a case where the refusal was not considered reasonable. In a recent decision of WorkSafeBC’s Review Division, a worker with a nut allergy refused to report to work claiming that the employer had not taken sufficient precautions to protect her from exposure to nuts. The Review Officer offered the following guidance on determining what a reasonable belief is:
The standard of analysis is one of “reasonable belief.” This is an objective standard. It is not enough that the worker believes in the existence of the hazard. The evidence on investigation must establish that the hazard was reasonably present.
The Review Officer went on to conclude that:
I do not doubt that she personally believed herself to be in danger, but personal belief is not enough to satisfy the test for “reasonable belief.” There must be some basis to conclude that the worker’s concerns were legitimate enough to justify the decision not to attend work. In this case, the reality is that in light of the steps the employer had already taken to prevent nuts from entering the school, the worker faced no more risk coming to work on that day than she would in attending any public place or, as suggested by the employer, in attending her union office (where she actually did go). I do not find that Ms. C’s belief that her workplace posed an “undue hazard” has been justified on the evidence, nor do I find her actions in not reporting to work on November 13, 2007 to be reasonable.
Notwithstanding an analysis of whether a worker’s assertion of unsafe work is reasonable or not, if a worker does refuse to work believing it to be unsafe, the worker and the employer must adhere to the following procedure.
Step 1 – Immediately report the circumstances
When a worker refuses to work believing it to be unsafe, s/he must immediately report the circumstances of the unsafe condition to his or her supervisor or employer. As is often the case, the worker cannot simply walk off the job. Furthermore, this section does not give the worker discretion as to the time when they will report — it must be immediate.
Step 2 – Investigate
The supervisor or employer receiving a report of unsafe work conditions must immediately investigate. As above, the supervisor or employer does not have the discretion to defer an investigation. The investigation need only be carried out by the supervisor or employer. The investigation can only have one of two outcomes:
- Either an unsafe condition is discovered and remedied without delay and the worker returns to work; or
- No unsafe condition is discovered, the worker is informed of this, and the worker returns to work.
Step 3 – Further Investigation
If the investigation carried out under step 2 does not discover an unsafe working condition and the worker continues to refuse to work believing it be unsafe, a further investigation must be carried out.
This investigation must be carried out by the supervisor or employer and they must be accompanied by the worker who refused to work and a worker member of the joint committee. There is no requirement that this investigation be carried out immediately. It may be deferred until a time when all parties to the investigation are available. In those cases where the investigation will be deferred, the worker should be assigned to other work and experience no loss in pay.
Step 4 – Call WorkSafeBC
Where the worker continues to refuse to work even after the investigation carried out in Step 3 discovers no unsafe conditions, both the supervisor or employer and the worker must immediately notify a WorkSafeBC Prevention Officer.
This step imposes an obligation on the WorkSafeBC Prevention Officer to investigate the matter without undue delay. In some cases, you may have to remind the WorkSafeBC Prevention Officer of this obligation. |
What will the WorkSafeBC Prevention Officer do?
When a WorkSafeBC Prevention Officer is contacted with respect to a refusal of unsafe work, Guideline G3.12 outlines what actions the Officer will perform:
• Interview the worker refusing to work
• Interview the employer’s representative (this can be the supervisor)
• inspect the site of the reported unsafe conditions
• Issue an inspection report.
Where an undue hazard is observed, the Officer will issue a “stop work” order in conjunction with the inspection report. If an undue hazard is not observed, the inspection report will indicate that the investigation did not identify an undue hazard.
The link below will take you directly to a list of WorkSafeBC contacts including local offices, prevention resources, and emergency reporting: http://www.worksafebc.com/contact_us/default.asp
No discriminatory action
Where a worker has followed the above steps in refusing what they believed was unsafe work, the employer cannot take discriminatory action against the worker. Even if the worker’s belief is later deemed to be unreasonable, as long as the worker follows the steps and does not act maliciously they cannot be subject to discriminatory action. Section 150 of the Workers Compensation Act defines discriminatory action as:
a) any act or omission by an employer or union that adversely affects a worker with respect to any term or condition of employment, or of membership in a union;
b) suspension, lay-off or dismissal;
c) demotion or loss of opportunity for promotion;
d) transfer of duties, change of location of workplace, reduction in wages or change in working hours;
e) coercion or intimidation;
f) imposition of any discipline, reprimand or other penalty; and
g) the discontinuation or elimination of the job of the worker.
Discriminatory action may include any adverse affect to a worker’s benefits including sick leave. |
