Occupational Health and Safety Act

17(1)

In this section, “undue hazard” in relation to any occupation includes a hazard that poses a serious and immediate threat to the health and safety of a person.

17(2)

Subject to this section and section 5, a worker may refuse to work or to do particular work at a work site if the worker believes on reasonable grounds that there is an undue hazard at the work site or that the work constitutes an undue hazard to the worker’s health and safety or to the health and safety of another worker or another person.

17(3)

When exercising a right to refuse to work or to do particular work under subsection (2), a worker shall ensure, as far as it is reasonable to do so, that the refusal does not endanger the health and safety of any other person.

17(4)

A worker who refuses to work or to do particular work under subsection (2) shall promptly report the refusal and the reasons for it to the worker’s employer or supervisor or to another person designated by the employer or supervisor.

17(5)

An employer who receives a report under subsection (4) shall, as soon as possible, inform the joint health and safety committee, if there is one, or the health and safety representative, if there is one, of the report.

17(6)

The employer may require a worker who has made a report under subsection (4) to remain at the work site and may assign the worker temporarily to other work assignments that the worker is reasonably capable of performing.

17(7)

A temporary assignment under subsection (6), if there is no loss in pay, is not disciplinary action for the purposes of section 18.

17(8)

If the employer does not remedy the alleged undue hazard immediately, the employer shall, after discussing the matter with the worker who refuses to work or do particular work under subsection (2), immediately inspect the alleged undue hazard.

17(9)

The employer required to inspect under subsection (8) shall take any action necessary to remedy any undue hazard, or ensure that such action is taken.

17(10)

When a worker has refused to work or to do particular work under subsection (2), the employer shall not request or assign another worker to do the work until the employer has determined that the work does not constitute an undue hazard to the health and safety of any person or that an undue hazard does not exist.

17(11)

On completing an inspection under subsection (8), the employer shall prepare a written report of the refusal to work, the inspection and the action taken, if any, under subsection (9).

17(12)

The employer shall give a copy of the report completed under subsection (11) to the worker who refused work under subsection (2), the joint health and safety committee if there is one and the health and safety representative if there is one.

17(13)

If a worker who receives a report under subsection (12) is of the opinion that an undue hazard still exists, the worker may notify an officer.

17(14)

Where the employer becomes aware that a notification to an officer was made under subsection (13), the employer shall advise any other worker that the employer assigns to do the work, in writing, of

(a) the first worker’s refusal,

(b) the reasons for the refusal, and

(c) the reason why, in the opinion of the employer, the work does not constitute an undue hazard to the health and safety of any person or that an undue hazard is not present.

17(15)

An officer who receives a notification under subsection (13) shall investigate the matter and prepare a written record of the investigation and the officer’s findings, and shall give the joint health and safety committee if there is one, the health and safety representative if there is one, the worker and the employer a copy of the record.

18

No person shall take any disciplinary action against a worker by reason of that worker acting in compliance with this Act, the regulations, the OHS Code or an order issued under this Act.

19(1)

A worker who has reasonable cause to believe that the worker has been subjected to disciplinary action in contravention of section 18 may file a complaint with an officer within 180 days after the alleged contravention occurs, but not afterwards.

19(2)

An officer who receives a complaint under subsection (1) shall, subject to subsection (3), prepare a written report of the worker’s complaint, the investigation and the officer’s findings and shall give the worker and the employer a copy of the report.

19(3)

An officer may refuse to investigate a complaint where the officer is of the opinion that the complaint is without merit, or is frivolous, trivial, vexatious, filed with improper motives or otherwise an abuse of process.

19(4)

If an officer refuses under subsection (3) to investigate a complaint under subsection (1), the officer shall notify the worker in writing.

19(5)

Where an officer has refused under subsection (3) to investigate a complaint under subsection (1), the worker who made the complaint may, within 30 days of receiving notice of the officer’s refusal to investigate, request that a Director review the refusal.

19(6)

Upon the review referred to in subsection (5), a Director may

(a) confirm or revoke the officer’s refusal, or

(b) refer the matter to another officer for a determination in accordance with this section.

19(7)

An officer shall refuse to accept a complaint made by a worker who is bound by a collective agreement.

19(8)

If, in the opinion of the officer, disciplinary action has occurred in contravention of section 18, the officer may in writing order the person who contravened the section to do one or more of the following:

(a) cease the disciplinary action;

(b) reinstate the worker to the worker’s former employment under the same terms and conditions under which the worker was formerly employed;

(c) pay the worker not more than the equivalent of wages and benefits that the worker would have earned if the worker had not been subjected to disciplinary action;

(d) remove any reprimand or other reference to the matter from the worker’s employment records;

(e) take other measures to prevent recurrence.

19(9)

If the worker had worked elsewhere while the dismissal or disciplinary action had been in effect, those wages earned or benefits acquired elsewhere shall be deducted from the amount payable to the worker under subsection (8)(c).

19(10)

If an officer determines that disciplinary action has been taken against a worker who has acted in compliance with this Act, the regulations, the OHS Code or an order issued under this Act,

(a) there is a presumption in favour of the worker that the disciplinary action was taken against the worker because the worker acted in compliance with this Act, the regulations, the OHS Code or an order issued under this Act, and

(b) the onus is on the person who contravened section 18 to establish that the disciplinary action was taken against the worker for a reason other than that the worker acted in compliance with this Act, the regulations, the OHS Code or an order issued under this Act.