Is it a work refusal or labour relations complaint? Understand the difference

Jun 13, 2017

Workers' right to refuse work they believe to be unsafe to themselves or other workers is a mainstay of Ontario's Internal Responsibility System. At their best, refusals can draw attention to hazards not previously recognized, providing additional protection for workers.

But that's not always the reality, says Madeleine Loewenberg, senior partner at Loewenberg Psarris Workplace Law LLP. People may invoke their right to refuse when the actual issue is something other than a safety hazard. This can complicate what may be a time consuming, disruptive and demoralizing process for everyone involved.

At WSPS' recent Partners in Prevention national conference and trade show, Loewenberg led delegates through a series of real-life situations where refusals turned out to be labour relations issues.

  • Dowling v. Hamilton-Wentworth Detention Centre 2012 CanLII 81181. A guard received an anonymous phone call advising of a homemade gun on the premises and called for a Level 2 search. The union and the first level respondents objected, calling for a Level 4 search. The institution said no, and a union rep said, "I don't think so, I'm shutting it down." A ministry inspector was called, and concluded that a work refusal was not permitted because the risk was inherent in the work. The union appealed the inspector's decision to the OLRB. Ultimately, the board found that the guards' complaint was not a refusal but a protest about the level of search chosen by the detention centre.
  • Isinger v. TSI Termination Systems Inc., 2013 CIRB 688. A foreman exercised a work refusal and was joined by others, which led to a shutdown. The foreman had not identified a specific risk, and instead referred to employer changes to workplace processes and procedures, failures to follow through on health and safety commitments, and a failure to comply with the Canada Labour Code. When the foreman and others were disciplined, they claimed "reprisal." The Canada Industrial Relations Board found that the foremen wanted the employer to address ongoing safety issues, and were not reacting to a specific risk.
  • James v. Toronto Transit Commission, 2008 CanLII 46566. A worker was involved in an ongoing dispute with the TTC about his physical ability to drive a certain type of bus. During the dispute he accepted a shift on a route that involved switching to this type of bus. When the time came to switch, the worker invoked his right to refuse. After the TTC fired him, he appealed to the OLRB. The board found there was no reprisal because there was no proper work refusal. "Mr. James did not wait until his accommodation grievance was resolved. He tried to speed things up," explained Loewenberg.

"People need to be able to speak up in protection of their own health and safety, rather than be disciplined for having a health and safety concern, disregarding it, and becoming critically injured or killed," said Loewenberg. However, workers must honestly believe the work poses a risk to their health or safety.

The right to refuse, and the Internal Responsibility System are both based on the notion that within the workplace, people are in the best position to discuss among themselves their first level health and safety concerns and resolve them, said Loewenberg. In the next issue of WSPS eNews, WSPS safety expert Tanya Muller discusses how to create a safety culture that encourages communication over confrontation.

How WSPS can help

Understanding everyone's workplace roles and responsibilities creates a strong foundation for communication. Choose from a number of training courses and downloads.

Also, tap into our fall line-up of regional Partners in Prevention conferences and trade shows. Chances are, there's an event near you.