What do you do when employees refuse to work because they fear they’ll suffer from violence at the workplace? You might ask: can workers even do that? With workplace violence legislation and regulation spreading across Canada, you might just need to know.
Workplace violence and harassment made significant news in 2009, particularly in Ontario and Newfoundland and Labrador, where the governments amended their occupational health and safety laws or regulation to protect workers who face violence or harassment in the workplace. Ontario introduced and passed into law its Bill 168, Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), and Newfoundland and Labrador amended their Occupational Health and Safety Regulations. Ontario’s law covers both violence and harassment, while Newfoundland and Labrador’s amended regulations only cover workplace violence. (Ontario’s Bill 168 comes into effect June 15, 2010.)
Of course, with new OHS laws come new or modified responsibilities for employers and employees. In this post, I want to look at a modified one: employees’ right to refuse unsafe work. For a detailed look at what to do in the event of an employee work refusal, see the article, Workplace violence and work refusals: what do you need to know? on HRinfodesk.com.
In general, OHS legislation or regulations across the country permit workers to refuse to work or perform specific duties when they have reason to believe that the work conditions are unsafe. How should employers and employees interpret this in light of workplace violence and harassment concerns?
Obviously, violence and harassment could make a worker feel unsafe, but are they dangerous enough to initiate a work refusal? With respect to harassment, the answer is a pretty clear “no”, but for violence the answer is not so straightforward. Some jurisdictions have said “yes”, while others have said nothing. There’s also the question of imminent danger and physical hazard vs. the threat of danger (e.g., violence or bullying): are both of these dangers justifications to refuse work?
In Manitoba, Saskatchewan, the federal jurisdiction and Ontario (as of June 15), the law makes it clear that the threat of violence is enough to trigger a work refusal. As for the remaining provinces and the territories, OHS lawyer Cheryl Edwards of law firm Heenan Blaikie says, “Historically, in jurisdictions where no definition of workplace violence exists, or definitions do not include non-physical violence, tribunals have ruled that OHSA statutes are not sufficiently elastic to encompass non-physical violence or harassment.” Is that definitive? Unfortunately not.
Of course, that’s far from the only issue to arise from the right to refuse work and workplace violence. Others include discipline and dismissal, how to investigate, minimizing operational disruptions, protecting workers’ privacy, replacement workers, resolving problems, and more. Let’s take a look at some of these.
- Should employers discipline employees for refusing to work? Employers may not discriminate against employees who refuse unsafe work. This means that you cannot threaten, dismiss, suspend, demote or otherwise penalize an employee simply because of a work refusal. If it turns out that an employee has refused work without cause, the employer may have justification to discipline. How an employer acts in this situation should be guided by a policy stating what types of discipline it may use in the event of frivolous claims of danger.
- How can employers respect the privacy of employees involved in incidents of violence or harassment? This topic deserves more than a paragraph, and you’ll be reading more about it on the First Reference blog soon. But think about this: if an employee is exhibiting a lot of aggressive, harassing or even violent behaviour, and a co-worker refuses to work because of it, it’s easy to imagine such information spreading around the workplace in no time. If the employer doesn’t prevent the information from getting out, it could face a complaint of breach of privacy from the allegedly violent worker. And what if the threat of violence or harassment applied only to one particular worker? How would you find out? How would you protect others? Is danger to a single person sufficient to refuse work, or should a danger apply to anyone who is in the same position?
- Can employers replace a refusing worker while an investigation is in progress? The short answer is “yes”, but there are conditions. And it’s not clear how a work refusal claim of violence or harassment would affect employers’ ability to replace a worker. In a case of alleged violence or harassment, the employer could use its discretion to decide whether another worker would also face imminent danger performing the refused work; but that’s a decision it would probably be best to make in conjunction with the workplace health and safety representative and a union representative (if present), and possibly even a lawyer.
Many of these issues are related, too. For example, in order to minimize operational disruptions, you would have to employ replacement workers and limit the spread of information about the work refusal so that other workers don’t waste time gossiping. And in order to use replacement workers and maintain privacy, you would have to investigate quickly and discreetly.
As I mentioned, there are many more issues and not enough time to discuss them all. Regardless, we’ll be taking a lot of time in the coming weeks to look at the topic of workplace violence and harassment and all that entails. If it all sounds like too much to think about, it’s important to remember that compliance isn’t simply a feel-good exercise or a way to appease the government. Compliance makes good business sense. In other words, by understanding and complying with local laws and regulations, not only will you avoid legal complications, but you can make your operations more efficient, improve employee relations and build your reputation and brand. It might only take an internal policy, a training program and consistent follow-through—all things that well run businesses already have or do.
Remember to look at Workplace violence and work refusals: what do you need to know? on HRinfodesk.com, for jurisdiction-specific details on work refusals in the context of workplace violence.
Now, let us know what you think about work refusals and how they might be complicated by workplace violence and harassment.
Adam Gorley
First Reference Human Resources and Compliance Assistant Editor
Good thinking Andrew. I guess it’s not surprising that an employer might try to ignore a work refusal, believing that investigating it would be more trouble than the consequences; but I certainly can’t support that course of action. Employees are number one and employee safety should always be a top concern.
You’re absolutely right, Adam, that the law is unclear on the right to refuse work in the face of harassment and violence. I advise my clients to take the common sense “what if” approach. “What if” an employer failed to take seriously a work refusal and the employee suffered harm as a result? Regardless of whether the employee has the right to refuse to work, the employer has an obligation to investigate until it is established that the threat is unfounded.