![Global rules on foreign direct investment](https://www.nortonrosefulbright.com/-/media/images/nrf/nrfweb/knowledge/publications/us_24355_legal-update--fdi-alert.jpeg?w=265&revision=a5124a65-abf9-40e4-8e96-9df39ffdb212&revision=5250068427347387904&hash=96B456347C3246E5649838DF281C5F5D)
Publication
Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
Canada | Publication | March 30, 2020 - 4 PM ET
Who can refuse work?
In Ontario, workers can refuse work if they have reason to believe they or others are likely in danger because of:
That being said, a worker’s right to refuse work is not absolute. Understanding the circumstances in which a worker’s right can be limited requires a two-fold analysis:
If an employee is (i) part of a prescribed class of workers and (ii) falls under one of the two limiting activities, then he or she does not have the right to refuse work under Ontario’s Occupational Health and Safety Act.
On the ground, determining what set of facts can qualify as a limiting activity is not always easy. That said, decision-makers in Ontario have provided helpful guidance on the limits of a worker’s right to refuse work. For example, in one case1, employees working in a detention centre complained that their employer was dismissive of the threat of weapons in the workplace. In the circumstances of that case, it was held the employees did not have the right to refuse work. Indeed, the Ontario Labour Relations Board held that, at the time, the circumstances were not outside the workers’ normal course of employment, but rather inherent in their work.
Can work refused by one worker be reassigned to another?
In Ontario, replacement workers may generally be reassigned previously refused work while the ministry’s inspector conducts his or her investigation, up until the government investigator’s decision is communicated to the concerned parties. However, replacement workers reassigned work to use or operate the equipment, a machine, device or thing under investigation must be advised of the refusal and reasons for it.
While advising the replacement employee, the employer must ensure a prescribed person is present. These persons must be a (i) committee member who represents workers, if any; (ii) health and safety representative, if any; or (iii) worker who because of knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them (hereinafter collectively referred to as Workplace Stakeholders).
On a related note, it is important to note that after work has been refused, the refusing employee is required to remain in a safe place as near as reasonably possible to his or her work station, and is available for the purposes of the employer’s investigation. The same requirement applies during an investigation conducted by a ministry inspector, unless the worker is assigned reasonable alternative work during his or her normal working hours, or if the employer gives the worker other directions. For unionized employees, if provisions in a collective agreement dictate otherwise, those provisions apply.
Do employers have to pay workers after they refuse work?
Although not expressly stated in the province’s legislation, the ministry’s view is that refusing workers should be paid until the employer completes its investigation and communicates its decision to the worker. What the legislation does require is paying wages of Workplace Stakeholders who are present (i) when a worker is reporting the work refusal to his or her employer or supervisor; (ii) during a ministry investigator’s investigation, or (iii) when a replacement worker is being reassigned work previously refused and properly advised in accordance with the legislation’s requirements, discussed above.
Who can refuse work?
In Alberta, workers may refuse to do work or do particular work at a work site if they believe on reasonable grounds that there is a dangerous condition at the work site, or that the work constitutes a danger to the worker’s health and safety or to the health and safety of another worker or another person.
Can work refused by one worker be reassigned to another?
In Alberta, employers are prohibited from reassigning previously refused work until they determine the work is not a danger to the health and safety of any person or that the dangerous condition does not exist. Replacement workers are entitled to be advised of the first worker’s refusal, the reason for the refusal, why the employer does not view the work as a danger to the health and safety of any person or that the dangerous condition does not exist, and the worker’s right to refuse the reassigned work.
Do employers have to pay workers after they refuse work?
A worker is entitled to be paid while a work refusal is being investigated.
Who can refuse work?
Unlike in most jurisdictions where work refusals are a discretionary “right” exercised by workers, workers in British Columbia must not perform work or activities if they have reasonable cause to believe the work or activity creates an undue hazard to the health and safety of any person. Unlike other jurisdictions in Canada, the term “persons” not only includes workers and employees; it extends to any person whose health and safety is in jeopardy.
Ultimately, the employee must have an objective basis for the refusal. Where an employee is a “susceptible worker” due to an underlying condition that would lead them to suffer an illness or sustain an injury where others might not be affected in the same way, their specific health condition must be considered in assessing whether they have reasonable cause to believe the work presents an undue hazard. To uphold a work refusal, there needs to be a clear connection between the undue hazard asserted by the susceptible worker, and his or her health condition.
Further, employers of unionized workplaces should consider any provisions of the collective agreement that may address the issue of refusal of work.
Can work refused by one worker be reassigned to another?
As mentioned above, employees in British Columbia are prohibited from performing unduly hazardous work. Despite this, the applicable regulation in British Columbia does not expressly prohibit employers from reassigning work to a replacement worker and is silent on the issue.
That being said, the reassignment of previously refused work should be considered with caution. If the reassigned work is eventually deemed unduly hazardous, the employer may be accused of pressuring employees into breaking their legal obligations not to perform such work in light of their reasonable cause to believe the work presented an undue hazard. Additionally, an employer may be accused of failing to observe its general statutory duties to ensure the health and safety of its workers, which includes remedying any workplace conditions hazardous to the workers’ health or safety, and ensuring workers are made aware of all known or reasonably foreseeable health or safety hazards to which they are likely to be exposed by their work.
Do employers have to pay workers after they refuse work?
British Columbia legislation does not expressly specify whether employees should be paid during the investigative process following a work refusal. However, the worker must not be subject to any “discriminatory action” that would include any act or omission by an employer, or person acting on behalf of an employer, that adversely affects a worker regarding any term or condition of employment. Temporarily assigning an employee to alternative work during the investigative process, at no loss in pay, is not considered a discriminatory action.
Who can refuse work?
Under the Canada Labour Code (the Code), federally regulated employees are entitled to refuse dangerous work, as long as they have reasonable grounds to believe it presents a danger. Specifically, employees can refuse work if (i) using or operating a machine or thing, (ii) working in a place or (iii) performing an activity constitutes a danger to themselves or to another employee. Of note, Parliament amended the definition of danger in 2014, now defined as “any hazard, condition or activity that could reasonably be expected to be an imminent 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.”
However, workers are not permitted to refuse work where the work refusal would put the life, health or safety of another person directly in danger or the danger is a normal condition of employment. Moreover, the Code contains industry-specific provisions that may disallow employees from refusing work in certain circumstances.
Specifically in the air and maritime sectors, employees working on an operating ship or aircraft who have reasonable grounds to believe danger would result from (i) the use or operation of a machine or thing, (ii) a condition existing in the workplace, or (iii) the performance of an activity, cannot automatically refuse to work.
Instead, employees are required to immediately notify the person in charge of the ship or aircraft of the circumstances surrounding the alleged danger. After being notified, the person in charge, as soon as is practicable, will decide whether the employee can refuse work. While the ship or aircraft is in operation, the person in charge has the final say. In other words, once a ship or aircraft is in operation, employees cannot refuse work if the person in charge decides they must work, even if the employee disagrees.
Can work refused by one worker be reassigned to another?
Under the Code, the employer is permitted to reassign previously refused work to another employee, subject to three conditions. First, the replacement employee must be qualified for the work. Second, the replacement employee must be informed of the previous refusal and the reasons for it. Third, the employer must be reasonably satisfied that the replacement employee will not be in danger. Similarly to other jurisdictions, the Code also allows the replacement employee to refuse the reassigned work, if he or she has reasonable grounds to believe it is dangerous.
Do employers have to pay workers after they refuse work?
Yes, employers are required to pay wages and continue benefits to refusing employees until the investigative process is completed.
For commentary on work refusals as they apply to Quebec, please click here and here.
So, how do these legal concepts apply to in cases of pandemic or outbreak?
Although it is not yet clear to what extent COVID-19 will allow workers to legally refuse work, there are a number of helpful cases from the federal sector during the SARS outbreak about 15 years ago that provide some insight.
In most cases, work refusals were found to be unjustified based on the available evidence. For example, in the federal jurisdiction, two investigation and control officers refused to work because they were afraid of contact with Asian clients coming from the airport, who might have been exposed to SARS. It was found that based on the evidence there was “neither an existing nor a potential hazard of contracting SARS” and so the work refusal was unjustified.2 However, it should be noted this decision was made under the Code’s previous definition of danger, which, as mentioned previously, has since been amended to expressly include the concepts of “imminent” and “serious.”
What about teleworking employees?
Another COVID-19 reality is that, as noted above, many workers are now working outside their physical or traditional workplace, including employees working remotely from home as a result of the pandemic, or because the nature of employment is such that employees must travel and attend various locations to perform their work. Whether these employees attending multiple locations during their workdays can legitimately refuse work if faced with an unsafe situation will depend on the facts and jurisdiction. For example, in some jurisdictions, such as Alberta, the legislation provides that employees are only entitled to refuse work “at the worksite.” Others, however, do not expressly place geographical limits on where work refusals can lawfully occur.
With that in mind, last December, the Supreme Court circumscribed an employer’s obligations over workplaces it does not control in a practical and reasonable manner. Specifically, the court held that the degree of control the employer exerts over the place at issue is key in determining whether an employer must perform all the health and safety tasks it would normally be required to perform in traditional workplaces over which they have control.
In this case, the court recognized that an employer’s health and safety obligations may vary depending on whether it has physical control over the workplace or not. It should, however, be noted that the court carefully considered the employer’s efforts to ensure proper and reasonable health and safety measures were in place at the depot, which in the end strengthened the employer’s position.
Staying well positioned
Not every workplace challenge can be fixed by our legal regime. Objectivity is and will undoubtedly continue to often be elusive, and work refusals may manifest themselves regardless of any disciplinary or job loss consequences. Hence, human resources teams will need to enhance transparency, communication and consultation processes in particular around enhanced safety measures taken in their workplaces.
In light of the pandemic, this exercise is ever more crucial, as the transmission of the virus remains obscure. Indeed, Canada’s Governor General recently commented that “this virus does not know borders, or timeline, colour or nationality. It zeros in on the most vulnerable, but it lives everywhere. Not just on people, but on doorknobs and table counters. It is a clever beast that we cannot underestimate.” And, indeed, workplaces are no exception.
For more information on layoffs across Canada, please check out our guide here.
Publication
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
Publication
Artificial intelligence (AI) raises many intellectual property (IP) issues.
Publication
We are delighted to announce that Al Hounsell, Director of Strategic Innovation & Legal Design based in our Toronto office, has been named 'Innovative Leader of the Year' at the International Legal Technology Association (ILTA) Awards.
Subscribe and stay up to date with the latest legal news, information and events . . .
© Norton Rose Fulbright LLP 2023