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Right to refuse FAQ

 

Right to Refuse – Frequently Asked Questions

Can an employee refuse to do work that they believe will endanger their health or safety, or that of others?

Yes, but exercising this right is serious and should not be done lightly or as a routine method of solving workplace problems. However, employees should not be afraid to exercise their rights when they believe that the work will endanger their health or safety, or that of others.

The following steps must be followed when an employee exercises their right to refuse:

Step 1
The employee must first report their concerns to their immediate supervisor, with specific reasons why they believe the work will endanger their health or safety, or that of others. Examples of detailed reasons may include the employee’s belief that they lack proper training or have not been provided with the necessary equipment to carry out the work safely.

A supervisor must react to an employee’s concerns by conducting a thorough investigation while the employee is present.

If the supervisor finds that the employee has reasonable grounds for believing that the work to be carried out will endanger the employee’s health or safety, the supervisor will take the necessary action to resolve the problem, or, where necessary, recommend to the employer to take the necessary action.

If the supervisor finds that the employee does not have reasonable grounds for believing that the work to be carried out will endanger the employee’s health or safety, the supervisor will advise the employee to do the assigned work.

If the matter is not resolved to the employee’s satisfaction and the workplace has a Joint Health and Safety Committee (JHSC), the employee will bring the matter to the attention of the JHSC for investigation (Step 2). If there is no JHSC in the workplace, the employee will contact WorkSafeNB to report their concerns (Step 3), and a health and safety officer will investigate.

Step 2
The JHSC must react to an employee’s concerns by conducting a thorough investigation.

If the JHSC finds that the employee has reasonable grounds for believing that the work to be carried out will endanger the employee’s health or safety, the JHSC will recommend the necessary corrective action to the employer to resolve the problem.

If the JHSC finds that the employee does not have reasonable grounds for believing that the work to be carried out will endanger the employee’s health or safety, the JHSC will advise the employee to do the assigned work.

If the matter is still not resolved to the employee’s satisfaction the employee will contact WorkSafeNB to report their concerns, and a health and safety officer will investigate.

Step 3
The health and safety officer must react to an employee’s concerns by conducting a thorough investigation.

If the officer finds that the employee has reasonable grounds for believing that the work to be carried out will endanger the employee’s health or safety, the officer will order the employer the take necessary corrective action to resolve the problem.

If the officer finds that the employee does not have reasonable grounds for believing that the work to be carried out will endanger the employee’s health or safety, the officer will advise the employee to do the assigned work.

WorkSafeNB has developed a right to refuse form to help document the steps discussed above

The employee should ensure that their right to refuse is clearly stated, and that it is not interpreted as a discussion or a complaint investigation, and that they are refusing to perform the work until action is taken. At this point, whether or not the employer or supervisor agrees with the employee’s refusal, under the Occupational Health and Safety (OHS) Act, the employee cannot be ordered or forced to do the work and cannot be disciplined for refusing the work they consider unsafe.

Exercising the right to refuse is a serious decision and should not be done lightly. However, safety must always come first and an employee should never be afraid to exercise this right when there is genuine concern for their safety or that of others. Above all, every employee has the right to return home from work in the same condition in which they arrived.

Are there other factors that apply?

Yes, and they include:

  • The employee must remain in a safe place unless assigned reasonable alternate work or given other directions by the employer while the matter is being investigated.
  • Any re-assignment must follow the rules of the collective agreement, if one exists.
  • An employer must continue to pay wages and benefits for an employee throughout this process unless the employee does not accept to do the alternate work that is assigned.
  • The employer can assign another employee to perform the work the first employee has refused, provided the supervisor informs the other employee of the refusal and the reasons for the refusal.
  • If another employee accepts to carry out the work and the work is completed, the matter will be considered resolved to the satisfaction of the employee who initiated the work refusal and the right to refuse is ended.


What if the employer or employee does not agree with the health and safety officer’s decision?

Either party can appeal the officer’s decision to the chief compliance officer (CCO) within 14 days.

Click here for a flow chart depicting the work refusal process.

Can an employee be disciplined or fired for refusing to work or for raising concerns?

An employee’s right to refuse unsafe work is protected under the OHS Act. Whether or not an employer or supervisor agrees with an employee’s right to refuse, once they exercise this right an employee cannot be ordered or forced to do the work, or be disciplined or fired for refusing the unsafe work.

An employee’s right is protected until the chief compliance officer renders a decision on an appeal of a WorkSafeNB health and safety officer’s ruling advising an employee to do the assigned work. At this point, an employee who continues to refuse to do the assigned work may be subject to discipline.

If an employee believes they have been disciplined (sent home without pay, had hours drastically cut, has been fired, etc.), the employee can file a complaint by completing a Form 1.

For more information on this process, please follow the steps found in Understanding the Arbitration Process.







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