Exercising Your Right to Refuse!

Section 122 (1) - Canada Labour Code - Interpretation of Danger

Danger means any existing or potential hazard or condition or any current or 
future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes an exposure to a hazardous substance that is likely to result in a chronic illness, in disease to the reproductive system.

Canada Post has a fundamental obligation to protect its employees from exposure to any situation that may potentially threaten an employee's health, safety, and physical well-being. However, during the course of one's employment, situations may arise that can put our health, safety and well-being into jeopardy. 

In potentially dangerous situations, we have the right to refuse to perform our duties. This right has been legislated by the federal government into the Canada Labour Code, and it has been negotiated into our own collective agreement with Canada Post through the process of collective bargaining.

The right to refuse represents a fundamental protection against harm or injury, and it serves to protect employees (and their families) from the tragedy of an unnecessary work place injury. 

When faced with a potential hazard, Canada Post employees may exercise their right to refuse to perform their duties under either the Canada Labour Code, or under the provisions of the CUPW-CPC collective agreement. An employee cannot choose both options, but it is an employee's discretion to decide which option is to be exercised. Once made, the decision is binding and an employee is obligated to disclose to his/her supervisor whether the right to refuse is being exercised under the Canada Labour Code, or under the collective agreement. 

The right to refuse is an individual right rather than a collective right, and while more than one employee may exercise his/her right to refuse at the same time, it must be exercised on an individual basis. The following information, while by no means definitive, should assist as a general guideline to the process involved when exercising the right to refuse: 

The Canada Labour Code

Under section 128 of the Canada Labour Code, an employee may refuse to work in a place or perform an activity if he/she has reasonable cause to believe that a condition exists in the work place that constitutes a danger to that employee. In the face of a potential danger, an employee may exercise this right under the code, and if so, he/she must inform the employer without delay. 

  • Upon being informed that an employee is exercising this right, an employer must immediately take action to protect the employee(s) from the danger that has formed the basis for the complaint.

  • If an employee is not satisfied with the results of the supervisor's actions, he/she may continue the refusal, and he/she must advise the employer and a Union Representative of Local Joint Health and Safety Committee. The Corporation is then required to investigate the matter in the presence of the employee who reported it and the Union Health and Safety Representative. 

  • If, following this investigation, the employee making the complaint has reasonable cause to believe that a danger continues to exist, then he/she may continue to refuse to perform his/her duties and the Corporation must then advise Labour Canada Health and Safety Officer who will then attend the site of the investigation. 

  • During the period of the refusal, an employee is deemed to be at work and as such, will receive his/her regular wages, although he/she may be re-assigned to other duties. 

  • An employee may not be disciplined for exercising his/her right to refuse unless it can be established that the complaint was made for frivolous reasons.

The Collective Agreement

Clause 33.13 of the current collective agreement deals with the right to refuse. If an employee believes that his/her safety is at risk, he/she may exercise his/her right to refuse under the collective agreement. 

  • In such a case, a supervisor and a union representative must be informed without delay, and the employee making the complaint is entitled to be present during the investigation. An employee exercising this right will not suffer any lost wages, and will not be required to perform the duties giving rise to the complaint until an investigation has been completed. 

  • However, an employee may be assigned to perform other duties, providing that the reassignment does not jeopardize his/her health and safety. Under clause 33.13, Canada Post may not assign any other employee to work in the area that is the subject of the complaint until the investigation is completed. This is a distinct improvement from the Canada Labour Code, which provides only that an employee be informed that he/she is being assigned to duties which are subject to an investigation. 

  • CPC employees should take note that an employee may not be disciplined for exercising his/her right to refuse, unless it can be established that an employee, for frivolous reasons, has sought to dishonestly take advantage of this clause. 

Either of the above options provides us with significant protection from hazardous situations, but the right to refuse must be exercised if it is to be an effective measure. 

On a daily basis, Letter Carriers encounter dogs while in the course of their deliveries. According to Canada Post, there were 384 documented dog bites and scratches during the 2003 calendar year. In addition, there were 255 other injuries resulting from altercations with animals. Since that time, these types of incidents have increased. 

In June 2004, a letter carrier in Chatham Ontario was the victim of an unprovoked attack by two pit bulls. After crashing through a screen door, the two dogs immediately attacked her, and tore off her ear. The victim also broke both of her wrists in her struggle to escape. Unfortunately, this was not the first time that a letter carrier has suffered a tragic injury because of a dog attack. 

While not every dog is vicious, it cannot be disputed that dogs can represent a significant hazard to Canada Post employees. Accordingly, you are not required to put yourself at risk by delivering to any residence or business where a dog has been left unrestrained, or where the presence of a dog represents a threat to your health and safety. 

The right to refuse may be exercised in any situation where a dog represents a hazard to your health and safety.

The potential hazard of each case will vary depending on the individual circumstances, but it is the reasonable perception of a potential danger that forms the basis of a right to refuse. 

Protect yourself, and your family, by becoming aware of your rights. If you have any questions about the right to refuse, please contact your shop steward or call the union hall.

Additional information regarding the right to refuse under the collective agreement is available at: http://www.cupw-sttp.ca. For more information on the right to refuse under the Canada Labour Code, please visit: www.hrdc-drhc.gc.ca.

In Solidarity,

Ken Mooney
President

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