In Canadian, Police work what is right to refusal and where is the bottom line of Job duty!

When is being shot at, kicked, stabbed or put at harm’s way Ok for police or tri service members in Canada where does safety step in and say WHOA! And when is it a catch 22 event?

Do all workers have the right to refuse unsafe work? According provincial  Occupational Health and Safety Act, workers have the right to refuse work they feel is likely to endanger their health or that of another worker.   And most people in the work force have these rights as written in stone and legislation. Employees responsibilities include the following:

• Work in compliance with OH&S acts and regulations.
• Use personal protective equipment and clothing as directed by the employer.
• Report workplace hazards and dangers to the supervisor or employer.
• Work in a safe manner as required by the employer and use the prescribed safety equipment.
• Tell the supervisor or employer about any missing or defective equipment or protective device that may be dangerous.

Employees have the following three basic rights:

• Right to refuse unsafe work.
• Right to participate in the workplace health and safety activities through the Health and Safety Committee (HSC) or as a worker health and safety representative.
• Right to know, or the right to be informed about, actual and potential dangers in the workplace.

Though some workers, including police officers, firefighters, teachers and health care workers have restrictions on their right to refuse.  The Canada Labour Code (Code) is to “prevent accidents and injury to health arising out of, linked with or occurring in the course of employment” at federally regulated work places. The reduction of all forms of violent incidents is critical to sustaining a healthy and safe work place. For this reason, paragraph 125(1)(z.16) of the Code requires employers to “take the prescribed steps to prevent and protect against violence in the work place.” Part XX of the COHSR, Violence Prevention in the Work Place, contains the prescribed steps that must be implemented.

The federal OHS Code defines "danger" 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."

Danger exists:

The employer shall take immediate action to protect employee(s) and inform the work place committee or representative of the situation and the actions taken to resolve it.

If after the corrective measures are taken and the employee agrees, he or she returns to work.

Danger exists but the refusal is not permitted under legislation as it puts lives, health or safety of another person directly in danger or the danger is a normal condition of employment.

The employer shall notify the employee in writing.

If the employee agrees, he or she returns to work.

Danger does not exist:

The employer shall notify the employee in writing.

If the employee agrees, he or she returns to work.

Characteristics of "danger" as defined in the Code

The main components of the definition are:

Hazard/Condition/Activity

1.  "Hazard" means a source of harm or risk to an employee.

2.  "Condition" means circumstances, and in particular, those affecting the functioning or existence of something.

3.  "Activity" means the tasks directly related to the employee's duties.

Additional definitions

1.  "Reasonably expected" means:

Does not require that the threat materialize every time the hazard, condition or activity occurs;

It is not necessary to establish precisely the time when the threat will materialize nor does the threat need to materialize frequently;

Only requires that a person determines in what circumstances the threat could reasonably be expected to materialize;

There is more than one way to establish that a condition, hazard, or activity can reasonably be expected to be a threat. Evidence of actual injury in exactly the same circumstances is not required.

Other sources of evidence include: expert opinions; opinions of ordinary witnesses having the necessary experience; and inference arising logically or reasonably from known facts.

2.  "Imminent threat" means a threat on the point of happening.

3.  "Serious threat" means a substantial threat to health or life and includes potential substantial threat.

4.  "Life or health" includes injury and illness.

5.  "Continued refusal to work" refers to the employee's continued refusal to work following the employer's decision under subsection 128(15).

Upon notification of a continued refusal to work, the Official delegated by the Minister, with the appropriate authority must assess whether a danger exists; that is, whether the hazard, condition or activity in question are reasonably considered either an imminent threat or a serious threat before the hazard or condition can be corrected or the activity altered.

Danger that is a “Normal Condition of Employment”

What it is

·        After the employer has:

1.  identified every hazard; and

2.  eliminated it, reduced and controlled it or provided protective clothing, equipment, devices or materials to employees to protect them against it; then, any danger that remains constitutes a normal condition of employment.

·        The existence of any danger that is a normal condition of employment is not a grounds for a refusal to work. Normal refers to something that is regular, to a typical state or level of affairs, something that is not out of the ordinary.

What it is not

·        Excluded from dangers that are normal conditions of work are those dangers that are not essential characteristics of the work but which depend on the method used to perform the work.

·        A new assessment is required when the circumstances in which a person is exposed to a danger that is a normal condition of employment changes. It cannot be assumed that any danger that exists as a result of the change will remain a normal condition of employment. Examples where new assessments may be required include changes to policy, procedure, training, tools, personal protective equipment, and supervision.

·        A danger that is a normal condition of employment does not include unexpected situations that increase the risk or present a danger to the employee. Such unexpected situations may include ice storms, floods and other natural disasters or unusual weather events.

4. Determining whether a danger is or is not a normal condition of employment for the purposes of assessing a refusal to work

Pursuant to Canadian Federal OHS of the Code, an employee may not refuse to work if the danger the refusal is based on is a “normal condition of employment”.

Whether the danger is a normal condition of employment is a two part question:

1.  Is there a danger as defined in the Code?

2.  If a danger exists, is the danger a normal condition of employment?

Assessment Principles

For assessment principles relating to “danger”.

Once it has been determined that a danger exists, the danger is to be analysed to determine whether it is a “normal” condition of employment.

What constitutes “normal” is more than what is reflected in a job description, it also includes but is not limited to consideration of:

·        the environment in which the activity or task is normally performed;

·        the tools and equipment normally provided, including personal protective equipment;

·        the information, instruction, training, and supervision normally provided, given the level of skill and experience of the employee.

Information that may be relevant to the analysis of whether a danger is a normal condition of employment includes, but is not limited to, records related to the performance of the activity including:

·        the employer’s job description or policy;

·        written procedures relating to the task in question including, but not limited to, those established under the hazard prevention program, if any;

·        statements and other input from the work place persons who are knowledgeable about how the task is actually performed. This includes the employee, the employer and the work place committee or health and safety representative; and

·        any other person who has the necessary experience or knowledge to provide the evidence.

·        Assess whether the employer has properly identified, assessed, and protected against (eliminate, reduce, control) all the hazards impacting or related to the health and safety of the employee. The danger that remains constitutes a normal condition of employment.

5. Considerations

(a) Employee

The employee may proactively review with the employer what danger is considered to be a normal condition of employment. The Internal Complaint Resolution Process may be available if there is a dispute.

In Canada just like the provinces, It should be understood that pursuant to the Code, an employee may not refuse to work under the Code where the danger on which they are basing their refusal is a normal condition of work. However, an employee always has the right to refuse to work under the Code when the employee has reasonable cause to believe the danger is not a normal condition of employment.

(b) Employer

An employer may proactively identify the dangers that are considered to be a normal condition of employment especially for activities that may be the subject of refusals to work. This may assist the employer in identifying and reporting to the employee “every known or foreseeable health or safety hazard in the area where the employee works.” (paragraph 125(1)(s) of the Code). Any danger that is considered a normal condition of employment may also be established when the task is being assessed under theHazard Prevention Program Regulations (Part XIX of the Canada Occupational Health and Safety Regulations