Workers Health & Safety Centre

Federal tribunal upholds worker’s refusal over lack of training

Federal tribunal upholds worker’s refusal over lack of training
A truck driver who refused a new assignment he wasn’t trained to perform has had his work refusal upheld by a health and safety tribunal.

The worker, with 20 years of driving experience including four years with his current employer, was asked to pull, load and unload a 53-foot trailer, a bigger trailer than he was used to driving. The employer offered no additional training claiming the driver’s experience was sufficient. A federal occupational safety and health officer investigated and upheld the worker’s refusal. That direction was appealed by the employer.

Labour Code Protection

The Canada Labour Code Part II requires all federally-regulated employers to take steps to ensure the health and safety of their employees. The Canada Occupational Health and Safety Regulations on Hazard Prevention Programs (19.6(2)(b)) also specifically dictates: “The employer shall provide education to an employee shortly before the employee is assigned to a new activity or exposed to a new hazard.”

The Labour Code also provides workers the right to refuse work under certain conditions, including when they have reason to believe performing an activity may constitute a danger. Labour Code amendments which took effect in 2014 included a revised, and seemingly narrower, definition of danger: “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.” [s. 122(1)].

The ruling--interpreting ‘danger’ and employer education obligations

This recent decision by the Occupational Health and Safety Tribunal Canada offers important interpretations on key aspects of the Labour Code. The appeals officer ruled:
  • The worker’s new assignment constituted a danger because the driver was not informed of the hazards in advance and did not receive instruction and training to protect against these hazards.
  • The driver’s previous work experience may impact the education provided by the employer but it does not exempt the employer from the obligation altogether.

The appeals officer, relying in part on the federal Labour Program’s Interpretations, Policies and Guidelines (IPGs) to help determine if a danger existed, wrote: “Again, to conclude, to the existence of a serious threat, it is not necessary to establish precisely the time when the threat will materialize. One must assess the probability that the alleged hazard, condition or activity will cause serious (i.e. severe) injury or illness at some point in the future. The issue is whether the circumstances are such that the threat can be expected to result in serious injury or illness, even if the harm to life or health of the employee might not be imminent.” This decision offers a somewhat more expansive interpretation of danger than health and safety advocates had been anticipating.

The increased risk of injury for those new to a job are well documented. Researchers at the Institute for Work & Health have found that ‘newness’ (not age) is a risk factor for workplace injury and illness. Tracking injury claims for a 10-year period, researchers found lost-time claims for workers in the first month on the job were three times higher than those employed at a job for one year. The relative risk was also highest among workers over 45 years of age.

Related resources:
Download and read the decision (Keith Hall & Sons Transport Limited v. Robin Wilkins)
Read a summary of the case
Review the Canada Labour Code Part II Health & Safety Regulations
Institute for Work & Health--Vulnerable workers and risk of work injury

Read related coverage from WHSC:
Report suggests Federal government actions placing worker health at risk
Changes to federal right to refuse provisions cause for concern and confusion

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