SCC Firmly Protects Workers’ Right to Refuse Unsafe Work

On May 1, 2014 the Supreme Court of Canada came firmly down on the side of protecting the right of workers to refuse unsafe work under occupational health and safety (OHS) legislation.

The particular case involved the right of a pregnant substitute teacher in Quebec to refuse unsafe work and the impact of doing so under OHS law. The SCC’s decision is heavily based on the Quebec laws that don’t apply elsewhere in Canada. However, OHS laws in all four Atlantic Provinces include the right of workers to refuse to perform unsafe work. The SCC’s decision includes comments on this right that apply to employers and workers beyond Quebec:

• Refusing Unsafe Work Is a Right. The SCC emphasized that a worker’s refusal to perform unsafe work is the exercise of a legal right – not a refusal to fulfill the employment contract. Workers don’t have to choose between job security and their health or safety.

• Part of Employment Contract. Because of the nature of OHS laws, the right to refuse unsafe work is automatically part of every employment contract between every worker and every employer.

• Deemed Substitute Not Absence. A reassignment or temporary withdrawal from work based on a worker’s right to refuse unsafe work is a deemed substitute for the work she would have performed but for the danger – not an absence from work.

The decision makes it clear the SCC places a high priority on workers’ right to refuse unsafe work under OHS laws and will seek to interpret that right broadly. The bodies that regulate OHS legislation across Canada will likely follow suit – and therefore, so should employers.

You can read the SCC’s decision in Dionne v. Commission scolaire des Patriotes 2014 SCC 33.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Occupational Health and Safety Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

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