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Health and Safety - Appeals of decisions that a situation does not present a danger or that a danger exists but the work refusal is not permitted

Table of contents

    What is a decision that a danger does not exist (no danger decision)? When is a work refusal not permitted?

    • Employees of federally regulated businesses or the federal public service can refuse to do work if they believe that it presents a danger to themselves or to another employee. Refusing to do dangerous work is sometimes called a “work refusal.” 
    • For example, the employee can refuse to:
      • operate a machine that is a danger to the employee or to another employee;
      • work in a dangerous place; or
      • perform an activity that is a danger to the employee or to another employee. 
    • To be a danger, doing the work must present an imminent or serious threat to the life or health of a person and require immediate correction. When an employee refuses to do dangerous work, the employer has to investigate.  
    • If the employee does not agree with the employer’s conclusion that either there is no danger or the danger has been corrected and no longer exists, the work refusal is reported to the employer’s Workplace Health and Safety Representative or the Workplace Health and Safety Committee.  
    • If the employee continues to refuse to work after the Representative’s or the Committee’s investigation, the work refusal is reported to the Head of Compliance and Enforcement (the Head) at the Labour Program of Employment and Social Development Canada. The Head can make one of three findings. They can find that:
      • a danger does not exist;
      • a danger exists but the work refusal is not permitted because not doing the work puts the life, health and safety of another person in danger, or the danger is a normal condition of employment; or
      • a danger exists (in this case, they will issue a direction to the employer to correct the issue).
    • A finding that a danger does not exist is sometimes referred to as a decision of no danger.
    • An employee can appeal the Head’s decision that there is no danger or that a danger exists but the work refusal is not permitted. This appeal is made to the Canada Industrial Relations Board (the Board).
    • This page explains how to appeal a decision by the Head that there is no danger or that a danger exists but the work refusal is not permitted.
    • For information on how to appeal a direction by the Head when the Head finds that a danger does exist, click here. 

    Who can file an application to appeal a decision?

    • The employee who refused to work can file an application to appeal the decision of the Head of Compliance and Enforcement that there is no danger or that a danger exists but the work refusal is not permitted.

    How do I file an application?

    • It is strongly recommended that you use the Application to Appeal a Decision form to file your application. The form contains the information that the Board needs to make a decision, and helps you make sure that the information that you are filing is complete. 
    • If you do not file all the information that the Board needs, it will take the Board longer to process your application. 
    • In some cases, not filing all the information that the Board needs can result in your application being dismissed without the opportunity to make any further submissions.
    • All documents, including applications and all supporting documents, are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board.  
    • You do not need to send the Board a paper copy of documents that have been e-filed with the Board. If you need assistance with the E-Filing Web Portal, you can contact the Board directly using its 1-800 line or online inquiry form. The Board’s contact information can be found here.  

    When does an application to appeal have to be filed?

    • An application to appeal the decision of the Head of Compliance and Enforcement that there is no danger or that the work refusal is not permitted must be filed within 10 calendar days after receiving the decision.

    Who is involved?

    • The employee – also called the applicant. 
    • The employer – also called the respondent.
    • A union, if the applicant is represented by one. The union must ask for the Board’s permission to participate. This is called a “request to intervene.” 
    • An Industrial Relations Officer (IRO) – for more information on the role of the IRO, click here.    
    • The Head of Compliance and Enforcement.
    • A decision maker appointed by the Chairperson of the Board to hear and decide the application.

    Can I be represented by someone else? 

    • Yes, each party can be represented by the person of their choice.
    • The Board does not provide lawyers to assist parties.  
    • The Industrial Relations Officer working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
    • The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
    • It is important that you attend any case management conferences that the Board organizes. These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing. 

    What if I am represented by a union?

    • If you are represented by a union, the Board will usually let the union know about the application to appeal and give the union the opportunity to participate in the case. The parties will have the opportunity to tell the Board why they think the union should or should not be allowed to participate. If the Board lets the union participate, it will have what is called “intervenor” status.

    What happens after the application has been filed?

    • The Board sends a copy of the application to appeal to the Head of Compliance and Enforcement (the Head) and asks for a copy of any document the Head relied on when they made their decision being appealed.
    • Once the Board receives the documents from the Head, it sends a letter to the person who filed the application to appeal (the applicant), the employer (the respondent) and the Head. 
    • If either of these parties has hired a representative, such as a lawyer, the letter will be sent to the representative. It is the representative’s obligation to keep the person that they represent up to date.
    • The letter will:
      • include your case file number;
      • include a copy of all documents filed by the applicant; and
      • tell you when you can file additional information and documents (submissions).
    • The letter will also include the name and contact information of the Board’s Industrial Relations Officer (IRO) who will assist the Board and the parties with the application. 
    • The IRO will answer questions that the parties have and assists the parties to reach a settlement whenever possible.   
    • The letter will also advise the person or organization that the application is against (the respondent) of:
      • how much time they have to file a response to the application; and 
      • how much time the applicant will have to reply to any new facts and arguments that the respondent raises.  
        • Normally, the Board gives the respondent 15 calendar days to file a response and the applicant 10 calendar days to file a reply.  Sometimes the Board will shorten the deadlines for responding.  Make sure you read the letter that you receive from the Board.
    • The response should clearly explain the respondent’s version of the facts to the Board. The response should also include any documents that the respondent has which the applicant did not file and which are relevant to the application.
    • If you decide not to file a reply, you should write to the Board and tell it that you will not be filing one.
    • You do not need to file documents that the other party has already filed.  
    • The parties are responsible for filing their arguments and documents on time.
    • If you need more time to file your submissions, you need to ask the Board to extend the deadline.  The Board will want to know why you are late and need more time and will only give you more time if you have a good reason.  The Board can refuse to consider any responses or replies that are filed late where an extension has not been given.

    How do I file my documents, representations, or evidence?

    • All complaints, applications, responses, replies, and supporting documents are filed using the Board’s E-Filing Web Portal.  This is the fastest and most accurate way to file documents with the Board. It is not necessary to send the Board a paper copy of documents that have been e-filed with the Board. 
    • Each party must send all other parties a copy of any document that they file with the Board. This can be done by email, by mail, by registered mail, by courier, or by hand.  
    • When you file documents with the Board, you must tell the Board how and when you sent the documents that you are filing to the other parties. 

    Is the information in my file confidential?

    • Parties who file documents with the Board are participating in a public hearing. This means that the documents that are in the file are available to the public. 
    • If a party is concerned about some of the information that they are filing with the Board being available to the public, that person can ask the Board to issue a confidentiality order. If the request is granted, the information that is protected will not be publicly available. For more information, you can refer to the Board’s Policy on Openness and Privacy or contact the Industrial Relations Officer responsible for your case. 

    Will there be mediation?

    • Mediation is part of the Board’s process. It is recommended that parties attempt to mediate their dispute. Many of the Board’s files are settled at the mediation stage. Mediation allows the parties to settle the dispute on their terms and resolves the matter faster than if the file has to go to a Board member for a decision.
    • The Industrial Relations Officer assigned to your file will contact you to discuss the mediation options offered at the Board.
    • For more information on the mediation process, please click here. 

    Will there be a hearing?

    • Not necessarily. In many cases, the Board can make a decision based on the documents on file, without holding a hearing. This is part of the reason why written submissions should be as complete as possible. This is true even if the parties request a hearing. 
    • If the Board decides to hold a hearing, it will advise the parties of the date, time, and location of the hearing in advance, usually after holding a Case Management Conference. 
    • For more information on the Board’s hearing process, please click here.

    What can the Board order?

    • The Board can: 
      • agree with the Head of Compliance and Enforcement’s decision;
      • find that a danger did exist;
      • find that a danger exists but the work refusal is not permitted; or
      • issue any direction that it considers appropriate to correct the issue.

    When will I get the decision?

    • The Board will notify you in writing of its decision.  
    • The time that it takes the Board to issue a decision can vary depending on the complexity of the case. 
    • All important decisions of the Board are published on the Decisions page. 
    • You can consult the Board’s performance statistics for more information on the average time it takes the Board to issue a decision after a complaint/application is filed.

    Is the Board’s decision final?

    The Board’s decisions are final and can only be reviewed in very specific circumstances.

    • If you believe that a Board decision is unreasonable, you can apply to the Federal Court of Appeal for judicial review; or  
    • If you believe the Board has made a serious error and should correct its original decision, you can file an application for reconsideration.

    In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.   

    Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review.