Canada Labour Code (R.S.C., 1985, c. L-2)

Marginal note:Prohibition

125.4 An employer is prohibited from treating an employee as if they were not their employee.

Duties of Employees

Marginal note:Health and safety matters

• 126 (1) While at work, every employee shall

  • (a) use any safety materials, equipment, devices and clothing that are intended for the employee’s protection and furnished to the employee by the employer or that are prescribed;

  • (b) follow prescribed procedures with respect to the health and safety of employees;

  • (c) take all reasonable and necessary precautions to ensure the health and safety of the employee, the other employees and any person likely to be affected by the employee’s acts or omissions;

  • (d) comply with all instructions from the employer concerning the health and safety of employees;

  • (e) cooperate with any person carrying out a duty imposed under this Part;

  • (f) cooperate with the policy and work place committees or the health and safety representative;

  • (g) report to the employer any thing or circumstance in a work place that is likely to be hazardous to the health or safety of the employee, or that of the other employees or other persons granted access to the work place by the employer;

  • (h) report in the prescribed manner every accident or other occurrence arising in the course of or in connection with the employee’s work that has caused injury to the employee or to any other person;

  • (i) comply with every oral or written direction of the Head or the Board concerning the health and safety of employees; and

  • (j) report to the employer any situation that the employee believes to be a contravention of this Part by the employer, another employee or any other person.

• Marginal note:No relief of employer’s duties

  (2) Nothing in subsection (1) relieves an employer from any duty imposed on the employer under this Part.

• Marginal note:Limitation of liability

  (3) No employee is personally liable for anything done or omitted to be done in good faith by the employee when the employee is assisting the employer, as requested by the employer, in providing first-aid or in carrying out any other emergency measures.

Employment Safety

Marginal note:Interference at accident scene prohibited

• 127 (1) Subject to subsection (2), if an employee is killed or seriously injured in a work place, no person shall, unless authorized to do so by the Head, remove or in any way interfere with or disturb any wreckage, article or thing related to the incident except to the extent necessary to

  • (a) save a life, prevent injury or relieve human suffering in the vicinity;

  • (b) maintain an essential public service; or

  • (c) prevent unnecessary damage to or loss of property.

• Marginal note:Exception

  (2) No authorization referred to in subsection (1) is required where an employee is killed or seriously injured by an accident or incident involving

  • (a) an aircraft, a vessel, rolling stock or a pipeline, if the accident or incident is being investigated under the Aeronautics Act, the Canada Shipping Act, 2001 or the Canadian Transportation Accident Investigation and Safety Board Act; or

  • (b) a motor vehicle on a public highway.

Internal Complaint Resolution Process

Marginal note:Complaint to supervisor

• 127.1 (1) An employee who believes on reasonable grounds that there has been a contravention of this Part or that there is likely to be an accident, injury or illness arising out of, linked with or occurring in the course of employment shall, before exercising any other recourse available under this Part, except the rights conferred by subsection (8.1) and sections 128, 129 and 132, make a complaint to the employee’s supervisor.

• Marginal note:Supervisor or designated person

  (1.1) However, in the case of a complaint relating to an occurrence of harassment and violence, the employee may make the complaint to the employee’s supervisor or to the person designated in the employer’s work place harassment and violence prevention policy.

• Marginal note:Oral or written complaint

  (1.2) The complaint may be made orally or in writing.

• Marginal note:Resolve complaint

  (2) The employee and the supervisor or designated person, as the case may be, shall try to resolve the complaint between themselves as soon as possible.

• Marginal note:Investigation of complaint

  (3) The employee or the supervisor may refer an unresolved complaint, other than a complaint relating to an occurrence of harassment and violence, to a chairperson of the work place committee or to the health and safety representative to be investigated jointly

  • (a) by an employee member and an employer member of the work place committee; or

  • (b) by the health and safety representative and a person designated by the employer.

• Marginal note:Notice

  (4) The persons who investigate the complaint shall inform the employee and the employer in writing, in the form and manner prescribed if any is prescribed, of the results of the investigation.

• Marginal note:Recommendations

  (5) The persons who investigate a complaint may make recommendations to the employer with respect to the situation that gave rise to the complaint, whether or not they conclude that the complaint is justified.

• Marginal note:Employer’s duty

  (6) If the persons who investigate the complaint conclude that the complaint is justified, the employer, on being informed of the results of the investigation, shall in writing and without delay inform the persons who investigated the complaint of how and when the employer will resolve the matter, and the employer shall resolve the matter accordingly.

• (7) [Repealed, 2013, c. 40, s. 180]

• Marginal note:Referral to the Head

  (8) The employee or employer may refer a complaint that there has been a contravention of this Part to the Head in the following circumstances:

  • (a) where the employer does not agree with the results of the investigation;

  • (b) where the employer has failed to inform the persons who investigated the complaint of how and when the employer intends to resolve the matter or has failed to take action to resolve the matter;

  • (c) where the persons who investigated the complaint do not agree between themselves as to whether the complaint is justified; or

  • (d) in the case of a complaint relating to an occurrence of harassment and violence, the employee and the supervisor or designated person, as the case may be, failed to resolve the complaint between themselves.

• Marginal note:Complaint to Head

  (8.1) An employee may make a complaint in writing to the Head if they believe that the employer has contravened section 125.4. The complaint must be made not later than six months after the day on which the complainant knew, or in the opinion of the Head ought to have known, of the action or circumstances giving rise to the complaint.

• Marginal note:Investigation

  (9) The Head shall investigate the complaint referred to in subsection (8) or (8.1) unless it relates to an occurrence of harassment and violence and the Head is of the opinion that

  • (a) the complaint has been adequately dealt with according to a procedure provided for under this Act, any other Act of Parliament or a collective agreement; or

  • (b) the matter is otherwise an abuse of process.

• Marginal note:Notice

  (9.‍1) If the Head is of the opinion that the conditions described in paragraph (9)‍(a) or (b) are met, the Head shall inform the employer and the employee in writing, as soon as feasible, that the Head will not investigate.

• Marginal note:Combining investigations — harassment and violence

  (9.2) The Head may combine an investigation into a complaint relating to an occurrence of harassment and violence with an ongoing investigation relating to the same employer and involving substantially the same issues and, in that case, the Head may issue a single decision.

• Marginal note:Duty and power of Head

  (10) On completion of the investigation, the Head

  • (a) may issue directions to an employer or employee under subsection 145(1);

  • (b) may, if in the Head’s opinion it is appropriate, recommend that the employee and employer resolve the matter between themselves; or

  • (c) shall, if the Head concludes that a danger exists as described in subsection 128(1), issue directions under subsection 145(2).

• Marginal note:Interpretation

  (11) For greater certainty, nothing in this section limits the Head’s authority under section 145.

• Marginal note:Former employees

  (12) A former employee may, within the prescribed time, make a complaint under subsection (1) relating to an occurrence of harassment and violence in the work place, in which case this Part applies to the former employee and to the employer as if the former employee were an employee, to the extent necessary to finally dispose of the complaint.

• Marginal note:Extension

  (13) On application by a former employee, the Head may, in the prescribed circumstances, extend the time period referred to in subsection (12).

Marginal note:Refusal to work if danger

• 128 (1) 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

  • (a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;

  • (b) a condition exists in the place that constitutes a danger to the employee; or

  • (c) the performance of the activity constitutes a danger to the employee or to another employee.

• Marginal note:No refusal permitted in certain dangerous circumstances

  (2) 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

  • (a) the refusal puts the life, health or safety of another person directly in danger; or

  • (b) the danger referred to in subsection (1) is a normal condition of employment.

• Marginal note:Employees on ships and aircraft

  (3) If an employee on a ship or an aircraft that is in operation has reasonable cause to believe that

  • (a) the use or operation of a machine or thing on the ship or aircraft constitutes a danger to the employee or to another employee,

  • (b) a condition exists in a place on the ship or aircraft that constitutes a danger to the employee, or

  • (c) 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.

• Marginal note:No refusal permitted in certain cases

  (4) 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.

• Marginal note:When ship or aircraft in operation

  (5) For the purposes of subsections (3) and (4),

  • (a) 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

  • (b) 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.

• Marginal note:Report to employer

  (6) 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.

• Marginal note:Select a remedy

  (7) 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.

• Marginal note:Investigation by employer

  (7.1) 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.

• Marginal note:Employer to take immediate action

  (8) 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.

• Marginal note:Continued refusal

  (9) 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.

• Marginal note:Investigation of continued refusal

  (10) 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.

• Marginal note:Report

  (10.1) 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.

• Marginal note:Additional information

  (10.2) 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.

• Marginal note:If more than one report

  (11) 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.

• Marginal note:Absence of employee

  (12) 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.

• Marginal note:Decision of employer

  (13) 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:

  • (a) agree that a danger exists;

  • (b) agree that a danger exists but consider that the circumstances provided for in paragraph (2)(a) or (b) apply;

  • (c) determine that a danger does not exist.

• Marginal note:Decision  — paragraph (13)(a)

  (14) 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.

• Marginal note:Decision  — paragraph (13)(b) or (c)

  (15) 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).

• Marginal note:Information to Head

  (16) 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).