By Christina Catenacci LL.B.

On May 6, 2011, WorksafeBC amended its guidelines that have been in place since 1999 regarding refusing unsafe work. The main changes involve defining what constitutes an “undue hazard” and explaining the test for making the determination whether a worker has a reasonable cause to believe that an undue hazard exists. Moreover, the changes clarify the requirement to further investigate a work refusal in the presence of other parties where the matter is unresolved.

The relevant section of the regulation is section 3.12. Under the revised guideline, the test of whether a person has a reasonable cause to believe that an undue hazard exists is an objective one – the question is whether the average worker at the workplace assessing the situation in good faith, using reasonable judgment and having regard to the worker’s training and experience, would have reason to believe that the circumstances present an undue hazard.

But who is the “average person”? It may not be the “average” in cases of susceptibility to an illness or injury due to a health condition. In the “susceptible worker” situation, there must be a direct connection between the undue hazard asserted by the susceptible worker and the illness or injury. For instance, this would happen where an offensive odour is present and apparent to all the workers in an office. One of the workers refuses to continue to work, saying that he suffers from a respiratory ailment and the odour is exacerbating his condition causing difficulty breathing. The employer has the right to ask for evidence of the connection between the hazard and the person’s health condition (like a medical report) during the investigation.

And what is a “reasonable belief of a hazard”? A number of factors may be considered in evaluating if a person’s belief is reasonable, including evidence that an undue hazard exists and whether the circumstances would normally lead a WorkSafeBC prevention officer to issue a stop use or stop work order under the Workers Compensation Act.

A “hazard” is “a thing or condition that may expose a person to a risk of injury or occupational disease.” Also, “undue” means “excessive or unwarranted”. Hence, an “undue hazard” is a thing or condition that may expose a worker to an excessive or unwarranted risk of injury or occupational disease.

One example of an “undue hazard” may be where a worker is assigned to work in the shipping and receiving area, covering the duties of another worker who is absent due to illness. Some supplies are delivered that require the use of a forklift to unload the delivery truck. The worker normally works in the warehouse in an area other than shipping and receiving, and has no prior experience or training in forklift operation. The worker believes that his lack of training and experience in operating a forklift would expose him to an undue hazard.

In this situation, the worker would immediately report the work refusal to the supervisor. The supervisor who receives the report immediately investigates the matter. Through the investigation, the supervisor establishes that this worker is not qualified to perform the work, and therefore the work presents an undue hazard for that worker. The supervisor locates another worker who possesses the necessary training and experience to perform this work safely, and reassigns the worker who refused the work to other job tasks. This would resolve the work refusal by removing the undue hazard created by assigning an inadequately trained worker to operate the forklift.

However, if the supervisor is of the view that the report of the unsafe condition is not valid, the supervisor is required to inform the worker of that opinion. If no resolution to the work refusal is found following this report, the supervisor must immediately contact an available party to continue the investigation. If a resolution is found after the matter is investigated in the presence of this person, the work refusal is satisfied at this stage. On the other hand, if no resolution is found to the work refusal, the supervisor, or the employer, and the worker must immediately notify a prevention officer.

The prevention officer investigating a work refusal ensures that the worker refusing to work and the employer’s representative both understand the procedure. If the parties have not followed the proper procedure, the prevention officer will review the procedure with the parties and direct them to continue their inquiries into the work refusal until the parties have exhausted their efforts to resolve the matter.

If they cannot resolve the matter themselves, the prevention officer will inspect the work areas, processes, equipment, and practices associated with the work refusal. If the prevention officer finds that an undue hazard is present, the prevention officer will issue an inspection report addressing the violations that apply to the undue hazard, and include a stop use or stop work order.

If an undue hazard is not identified, the prevention officer will inform the parties of this finding and include this in the inspection report: “An investigation into a work refusal under section 3.12 has not identified an undue hazard”. If the worker then refuses to continue working, the worker is no longer protected by the provisions of section 3.13 of the Regulation.

Additionally, the prevention officer advises the parties of the requirement that a worker must not be subject to discriminatory action because the worker has acted in compliance with section 3.12.

View the guideline here.

Originally published in HRinfodesk–Canadian Payroll and Employment Law News and Developments June 2011.

Christina Catenacci, LL.B., is editor at HRinfodesk.com–Canadian Payroll and Employment Law News.

HRinfodesk is an information and news service that is published by First Reference, which includes employment law news for every jurisdiction in Canada, a Library of Articles, FAQs, a Calendar of Events, Important Dates and an HR Internet Directory for expanded research. Our search tools will help you to quickly find results by jurisdiction, topic, date, keyword and article number. Visit hrinfodesk.com for more information.