Canadian Safety Reporter

CSR | March 2015 | News ©2015 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Carswell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safety-reporter.com Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $129 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: carswell.customerrelations @thomsonreuters.com Website: www.carswell.com One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media Karen Lorimer Publisher John Hobel Associate Publisher/Managing Editor Todd Humber exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness oc- curs immediately after the ex- posure to the hazard, condition or activity, and includes any ex- posure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system." e federal government deter- mined this defi nition was unclear and a source of confusion. In the last 10 years, about 80 per cent of work refusals investigated by the Labour Program resulted in fi nd- ings of "no danger." Its response was to streamline the defi nition of danger to "any hazard, condi- tion or activity that could reason- ably be expected to be an immi- nent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered." Key to the revision was the removal of the words "existing or potential" and "current or fu- ture" that had been used to de- scribe the nature of the hazard, condition or activity constituting a danger. e revision has also removed wording that included risks of fu- ture harm arising from the haz- ard, condition or activity. is may mean an employee's right to refuse work has been restricted so it does not include the right to refuse on the basis of anticipated or potential risk. is could have implications for situations that may present a risk to future health, such as the ex- posure to hazardous substances. Enhanced responsibilities for work refusals e amendments introduced sig- nifi cant changes to the procedure for responding to a work refusal. ey place a greater emphasis on the internal responsibility system by removing the role of a health and safety offi cer and mandating two workplace investigations of a work refusal be performed before referring the matter to the min- ister of labour (as represented by the Labour Program). When presented with a work refusal, the employer is required to conduct an immediate inves- tigation in the presence of the refusing employee and prepare a written report. e report should include the basis for the work refusal, a description of the em- ployer's investigation, the factors considered and the reason for the employer's decision that there is a danger or not — or the determi- nation that the work refusal is not permitted under the Canada La- bour Code because it puts the life, health or safety of another person directly in danger or the alleged danger is a normal condition of employment. If the work refusal is not re- solved following the employer's investigation, an investigation by the joint health and safety com- mittee (JHSC) or representative must be conducted. An inves- tigation by the committee must involve one representative from management and one who rep- resents employees, and a written report must be produced. e JHSC investigation is to be provided to the employer and, notably, the employer can pro- vide supplemental information to the investigator. If this second investigation does not resolve the work refusal, the matter is referred to the Labour Program. The referral to the minister highlights another important change to the code. Prior to the Oct. 31 amendments, all work refusals were to be investigated "without delay," meaning there was no discretion to decide not to investigate. However, the amend- ments now provide discretion such that the Labour Program may decide not to investigate a work refusal if it can be eff ec- tively dealt with under another act, or where the refusal is trivial, frivolous, vexatious or made in bad faith. If the Labour Program does not investigate the refusal, the employee cannot continue the work refusal and must return to work. Following its assessment of the matter, the Labour Program will resolve the work refusal with a written report to the employer, the refusing worker and the JHSC. If the assessment results in a direction being issued to the employer, then the employer, em- ployee or union may appeal that decision within 30 days. If the assessment of the La- bour Program is that no danger exists or the work refusal is not permitted, an employee has 10 days to appeal that decision. If the Labour Program does not investigate the work refusal, the refusing employee may seek judi- cial review of that decision within 30 days. In light of these amendments to the code, federally regulated employers should be reviewing work refusal programs for consis- tency with the revised defi nition of "danger" and ensure those who could be involved in respond- ing to a work refusal have been trained on the changes to the code, including the updated defi - nition of "danger" and procedural requirements for the internal in- vestigations and reports. Employers should develop template or precedent report forms and ensure they are made available to supervisors, manag- ers and the JHSC. Jeremy Warning is a former OHS prosecutor who is now a partner at Mathews Dinsdale & Clark in Toronto. He can be reached at (416) 777-8284 or jwarning@ mathewsdinsdale.com. Loretta Bouwmeester is a partner in Mathews Dinsdale & Clark's OHS and workers' compensa- tion practices in Calgary. She can be reached at lbouwmeester@ mathewsdinsdale.com or (403) 538-5042. Refusals < pg. 1 Greater discretion allowed around investigations e JHSC investigation is to be provided to the employer and the employer can provide supplemental information. Lead Editor Sarah Dobson Assistant Editor Mallory Hendry (On Leave) Assistant Editor Anastasiya Jogal Contributing Editors Liz Foster Sabrina Nanji Liz Bernier Jeffrey R. Smith Marketing Manager Mohammad Ali mm.ali@thomsonreuters.com (416) 609-5866 Circulation Co-ordinator Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585

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