Section 128 — Canada Labour Code: Refusal to work if danger

Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that the use or operation of the machine or thing constitutes a danger to the employee or to another employee; a condition exists in the place that constitutes a danger to the employee; or the performance of the activity constitutes a danger to the employee or to another employee. An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if the refusal puts the life, health or safety of another person directly in danger; or the danger referred to in subsection (1) is a normal condition of employment. If an employee on a ship or an aircraft that is in operation has reasonable cause to believe that the use or operation of a machine or thing on the ship or aircraft constitutes a danger to the employee or to another employee, a condition exists in a place on the ship or aircraft that constitutes a danger to the employee, or the performance of an activity on the ship or aircraft by the employee constitutes a danger to the employee or to another employee, the employee shall immediately notify the person in charge of the ship or aircraft of the circumstances of the danger and the person in charge shall, as soon as is practicable after having been so notified, having regard to the safe operation of the ship or aircraft, decide whether the employee may discontinue the use or operation of the machine or thing or cease working in that place or performing that activity and shall inform the employee accordingly. An employee who, under subsection (3), is informed that the employee may not discontinue the use or operation of a machine or thing or cease to work in a place or perform an activity shall not, while the ship or aircraft on which the employee is employed is in operation, refuse under this section to use or operate the machine or thing, work in that place or perform that activity. For the purposes of subsections (3) and (4), a ship is in operation from the time it casts off from a wharf in a Canadian or foreign port until it is next secured alongside a wharf in Canada; and an aircraft is in operation from the time it first moves under its own power for the purpose of taking off from a Canadian or foreign place of departure until it comes to rest at the end of its flight to its first destination in Canada. An employee who refuses to use or operate a machine or thing, work in a place or perform an activity under subsection (1), or who is prevented from acting in accordance with that subsection by subsection (4), shall report the circumstances of the matter to the employer without delay. Where an employee makes a report under subsection (6), the employee, if there is a collective agreement in place that provides for a redress mechanism in circumstances described in this section, shall inform the employer, in the prescribed manner and time if any is prescribed, whether the employee intends to exercise recourse under the agreement or this section. The selection of recourse is irrevocable unless the employer and employee agree otherwise. The employer shall, immediately after being informed of a refusal under subsection (6), investigate the matter in the presence of the employee who reported it. Immediately after concluding the investigation, the employer shall prepare a written report setting out the results of the investigation. If, following its investigation, the employer agrees that a danger exists, the employer shall take immediate action to protect employees from the danger. The employer shall inform the work place committee or the health and safety representative of the matter and the action taken to resolve it. If the matter is not resolved under subsection (8), the employee may, if otherwise entitled to under this section, continue the refusal and the employee shall without delay report the circumstances of the matter to the employer and to the work place committee or the health and safety representative. If the work place committee receives a report under subsection (9), it shall designate, to investigate the matter immediately in the presence of the employee who reported it, two members of the committee, namely, one employee member from those chosen under paragraph 135.1(1)(b) and one employer member who is not from those chosen under that paragraph. If the health and safety representative receives a report under subsection (9), they shall immediately investigate the matter in the presence of the employee who reported it and a person who is designated by the employer. Immediately after concluding the investigation, the members of the work place committee designated under subsection (10) or the health and safety representative shall provide a written report to the employer that sets out the results of the investigation and their recommendations, if any. After receiving a report under subsection (10.1) or under this subsection, the employer may provide the members of the work place committee or the health and safety representative with additional information and request that they reconsider their report taking into consideration that additional information. If the work place committee members or the health and safety representative considers it appropriate, they may provide a revised report to the employer. If more than one employee has made a report of a similar nature, those employees may designate one employee from among themselves to be present at the investigation. The employer, the members of a work place committee or the health and safety representative may proceed with their investigation in the absence of the employee who reported the matter if that employee or a person designated under subsection (11) chooses not to be present. After receiving a report under subsection (10.1) or (10.2) and taking into account any recommendations in it, the employer, if it does not intend to provide additional information under subsection (10.2), shall make one of the following decisions: agree that a danger exists; agree that a danger exists but consider that the circumstances provided for in paragraph (2)(a) or (b) apply; determine that a danger does not exist. If the employer agrees that a danger exists under paragraph (13)(a), the employer shall take immediate action to protect employees from the danger. The employer shall inform the work place committee or the health and safety representative of the matter and the action taken to resolve it. If the employer makes a decision under paragraph (13)(b) or (c), the employer shall notify the employee in writing. If the employee disagrees with the employer’s decision, the employee is entitled to continue the refusal, subject to subsections 129(1.2), (1.3), (6) and (7). If the employee continues the refusal under subsection (15), the employer shall immediately inform the Head and the work place committee or the health and safety representative of its decision and the continued refusal. The employer shall also provide a copy of the report on the matter prepared under subsection (7.1) to the Head along with a copy of any report referred to in subsection (10.1) or (10.2).