Commercial and Business Aviation Advisory Circulars

Employer and Employee Rights and Responsibilities, with respect to Employees Refusing to Work in Dangerous Situations

This Commercial and Business Aviation Advisory Circular (CBAAC) is intended to remind air operators of both their, and their employees’, rights and responsibilities with respect to employees refusing to work in dangerous situations. This CBAAC is also meant to raise awareness about the revised definition of "danger" that now appears in the Canada Labour Code, Part II.

Given that the information contained in this CBAAC relates specifically to employees’ occupational health and safety, all air operators are required to provide a copy of this circular to their Policy Health and Safety Committee / Work Place Health and Safety Committee / Health and Safety Representative, as the case may be, for promulgation to their employees.

• Canada Labour Code, Part II, subsection 122(1)
• Canada Labour Code, Part II, subsections 128(1) to 129(7)
• Canada Labour Code, Part II, sections 146 to 146.3
• Canada Labour Code, Part II, sections 147 and 147.1
• Canada Labour Code, Part II, paragraphs 125(1)(q), (z) and (z.01)

The Canada Labour Code, Part II, is the legislation, which ensures that the health and safety of all employees, who are under federal jurisdiction while at work, is protected. This legislation also provides employees with three basic rights:

• the right to know

• the right to participate; and

• the right to refuse dangerous work.

To better appreciate the scope of this third basic right, it must be viewed in conjunction with the revised definition of "danger" that was included in the September 2000 amendment of the Canada Labour Code, Part II, which reads:

Utilizing paraphrased excerpts from the Canada Labour Code, Part II, this CBAAC outlines the process that employers and employees must adhere to in the event of a refusal to work situation. When and where applicable, some of the process steps are followed by specific references to the Canada Labour Code, Part II. However, for the complete and definitive version of the refusal to work process, please utilize the entire set of references identified in the above References section.

1. For employees working on board aircraft, refusals to work in dangerous, or potentially dangerous, situations could occur during preparations for flight or once on board the aircraft, in a variety of different scenarios, for example: security issues on board aircraft; concerns about improperly packaged, loaded or secured cargo; pressures to complete flight on schedule; deteriorating weather conditions.
   
   While not meant to be an exhaustive list, the above are all possible situations that could result in an on board employee having reasonable cause to believe that there is a dangerous, or potentially dangerous, situation for themselves or others.  Should that be the case, the employee is within their legal right to refuse to work. [Subsection 128(1)]
   
   It is important to note that an employee may not refuse to work if the refusal puts the life, health or safety of another person directly in danger, or if the danger is a normal condition of their employment. [Subsection 128(2)]
   
   
2. For the purposes of the Canada Labour Code, Part II, 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. [Subsection 128(5)]
   
   The Transport Canada Aviation Occupational Health and Safety program position in this regard is that "aircraft in operation" only includes aircraft in movement, either on the ground, or in the air. Therefore, an aircraft is considered to be "in operation" anytime it is flying in Canada or abroad, as well as anytime the aircraft doors are closed and the aircraft is moving on the ground, under its own power, for the purposes of taking-off or landing. An aircraft is not considered to be "in operation" when it is stationary on the ground, in Canada or abroad, either before, after, or between flights.
   
   When an employee on an aircraft that is in operation has reasonable cause to believe that a dangerous, or potentially dangerous, situation exists, they must immediately notify the person in charge of the aircraft of the circumstances of the danger. [Subsection 128(3)]
   
   For purposes of the above, the pilot-in-command is considered to be the person in charge of the aircraft. However, in cases where the pilot-in-command is the employee with reasonable cause to believe a dangerous, or potentially dangerous, situation exists, it is their employer that is considered to be the person in charge of the aircraft.
   
   As soon as possible after being notified, having regard to the safe operation of the aircraft, the person in charge must decide whether the employee may cease working and advise the employee accordingly. [Subsection 128(3)]
   
   If the employee is informed that they may not cease working, then that employee shall not, while the aircraft is in operation, refuse to work. [Subsection 128(4)]
   
   
3. An employee who was, as described above, prevented from refusing to work while the aircraft was in operation, shall report the circumstances of the matter to the employer without delay, after the aircraft has landed. [Subsection 128(6)]
   
   In addition to the above, when an aircraft is on the ground in Canada or abroad, and not in operation, on board employees can also exercise their rights under the Canada Labour Code and refuse dangerous work. In these situations, the employee shall report the circumstances of the matter to the employer without delay. In most cases, this usually means the employee’s refusal to work would initially be handled by the duly authorized ground personnel appointed by the air operator, and not by the person in charge of the aircraft. [Subsection 128(6)]
   
   It is important to note that in the above situation, there is nothing to prevent an air operator from appointing the person in charge of the aircraft as the designated employer representative. If that is the person they decide to designate, then that is whom the employee shall initially report the circumstances of the matter to. However, in those cases where the person in charge of the aircraft is not the designated employer representative, the employer should ensure there is a process in place whereby the pilot-in-command is notified of the refusal as soon as possible, to help avoid any conflict with the aircraft’s scheduled departure time.
   
   The distinguishing difference between the above two "refusal to work" scenarios is that an on board employee is only required to automatically notify the person in charge of the aircraft, when the refusal takes place on board an aircraft that is in operation. [Subsection 128(3)]
   
   However in both scenarios, once informed of the circumstances of the matter, if the employer agrees that a danger exists, they must take immediate action to protect their employees from the danger, and then they must inform the Work Place Health and Safety Committee, or the Health and Safety Representative, of the matter and the action taken to resolve it. [Subsection 128(8)]
   
   
4. Should the above not resolve the matter, the employee may continue to refuse to work, in which case they must, without delay, report the circumstances of the matter to the employer and to the Work Place Health and Safety Committee or the Health and Safety Representative. [Subsection 128(9)]
   
   Immediately upon being informed, the employer must investigate the matter in the presence of the employee plus one member of the Work Place Health and Safety Committee who does not exercise management responsibilities, or the Health and Safety Representative, or another person selected by the employee if neither of the preceding individuals is available. [Subsection 128(10]
   
   
5. If after this investigation the employee has reasonable cause to believe that the danger still exists, they may continue to refuse to work. On being informed of the continued refusal to work, the employer shall notify a Civil Aviation Safety Inspector – Occupational Health and Safety (CASI-OH&S). [Subsection 128(13)]
   
   On being notified that an employee continues to refuse to work, the CASI-OH&S shall, without delay, investigate the matter in the presence of the employer, the employee and one other person selected from the same criterion specified above in number four. [Subsection 129(1)]
   
   
6. The CASI-OH&S shall, on completion of the investigation, decide whether the danger exists and immediately give written notification of the decision to the employer and employee. [Subsection 129(4)]
   
   If the CASI-OH&S decides that the danger exists, they shall issue the appropriate Directions to the employer, and the employee may continue to refuse to work until the Directions are complied with or until they are varied or rescinded as the result of an appeal. [Subsection 129(6)]
   
   In this regard, an employer that feels aggrieved by a Direction may appeal it in writing to an appeals officer, within thirty days after the date of the Direction being issued. Unless otherwise ordered by the appeals officer, an appeal of a Direction does not operate as a stay of the Direction. [Subsections 146(1) & (2)]
   
   If, on the other hand, the CASI-OH&S decides that the danger does not exist, the employee is not entitled to continue to refuse to work. However, the employee may appeal the CASI-OH&S decision, provided the appeal is sent in writing to an appeals officer within ten days after receiving notice of the decision. [Subsection 129(7)]
   
   
7. If the CASI-OH&S decision or Direction is appealed, the appeals officer shall, without delay, inquire into the circumstances of the matter and may vary, rescind or confirm the decision or Direction, and may also issue any Direction they consider appropriate. [Subsection 146.1(1)]
   
   The appeals officer shall provide a written decision, with reasons, and a copy of any Direction, to the employer and employee concerned. Upon receipt, the employer shall then, without delay, give a copy of this documentation to the Health and Safety Work Place Committee or Health and Safety Representative. [Subsection 146.1(2)]
   
   An appeals officer’s decision is final and shall not be questioned or reviewed in any court. [Section 146.3]
   
   However, an employer or employee aggrieved by an appeals officer’s decision may apply for judicial review of the decision in accordance with the Federal Court Act.
   
   
8. Employees need to be assured by their employers that refusing to work in dangerous, or potentially dangerous, situations will not, in and of itself, result in disciplinary action being taken against them.
   
   To protect an employee’s rights, the Canada Labour Code, Part II, states that no employer shall take, or threaten to take, any disciplinary action against an employee who has acted in accordance with, or who has sought the enforcement of, any of the provisions of the Canada Labour Code, Part II. [Section 147]
   
   Equally important for employers to note is that the Canada Labour Code, Part II, also states that after all the investigations and appeals have been exhausted by the employee who exercised their right to refuse dangerous work, the employer may take disciplinary action against that employee, provided the employer can demonstrate the employee has willfully abused those rights. [Section 147.1]

To be in compliance with the Canada Labour Code, Part II, employers must provide each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work, which would include being informed about their "refusal to work if danger exists" rights and responsibilities. [Paragraph 125(1)(q)]

Employers must also ensure that employees who have supervisory or managerial responsibilities, for example pilots-in-command, are adequately trained in health and safety, and informed of the responsibilities they have when acting on behalf of their employer. [Paragraph 125(1)(z)]

It is also the employer’s duty to ensure that members of Policy Health and Safety Committees, Work Place Health and Safety Committees, and Health and Safety Representatives receive training in health and safety, and are informed of their responsibilities under the Canada Labour Code, Part II. [Paragraph 125(1)(z.01)]

Employers should consider incorporating not only the above, but also all of their other occupational health and safety responsibilities contained in the Canada Labour Code, Part II, when developing their Safety Management Systems.

The Canada Labour Code, Part II, can be viewed in its entirety at the following website:

http://www.tc.gc.ca/CivilAviation/commerce/ohs/

Michel Gaudreau
Director
Commercial & Business Aviation