Internal Complaint Resolution Process

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.

Supervisor or designated person

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.

Oral or written complaint

The complaint may be made orally or in writing.

Resolve complaint

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.

Investigation of complaint

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

Notice

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.

Recommendations

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.

Employer’s duty

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.

[Repealed, 2013, c. 40, s. 180]

Referral to the Head

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

Complaint to Head

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.

Investigation

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

Notice

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.

Combining investigations — harassment and violence

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.

Duty and power of Head

On completion of the investigation, the Head

Interpretation

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

Former employees

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.

Extension

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

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

No refusal permitted in certain dangerous circumstances

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

Employees on ships and aircraft

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

No refusal permitted in certain cases

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.

When ship or aircraft in operation

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

Report to employer

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.

Select a remedy

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.

Investigation by employer

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.

Employer to take immediate action

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.

Continued refusal

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.

Investigation of continued refusal

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.

Report

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.

Additional information

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 report

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.

Absence of employee

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.

Decision of employer

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:

Decision  — paragraph (13)(a)

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.

Decision  — paragraph (13)(b) or (c)

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).

Information to Head

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).

Unless otherwise provided in a collective agreement or other agreement, employees who are affected by a stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during the stoppage until work resumes or until the end of the scheduled work period or shift, whichever period is shorter.

Employees on next shift

Unless otherwise provided in a collective agreement or other agreement, employees who are due to work on a scheduled work period or shift after a shift during which there has been a stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during their work period or shift, unless they have been given at least one hour’s notice not to attend work.

Alternative work

An employer may assign reasonable alternative work to employees who are deemed under subsection (1) or (2) to be at work.

Repayment

Unless otherwise provided in a collective agreement or other agreement, employees who are paid wages or benefits under subsection (1) or (2) may be required by the employer to repay those wages and benefits if it is determined, after all avenues of redress have been exhausted by the employee who exercised rights under section 128 or 129, that the employee exercised those rights knowing that no circumstances existed that would warrant it.

If the Head is informed of the employer’s decision and the continued refusal under subsection 128(16), the Head shall investigate the matter unless the Head is of the opinion that

Notices of decision not to investigate

If the Head does not proceed with an investigation, the Head shall inform the employer and the employee in writing, as soon as feasible, of that decision. The employer shall then inform in writing, as the case may be, the members of the work place committee who were designated under subsection 128(10) or the health and safety representative and the person who is designated by the employer under that subsection of the Head’s decision.

Return to work

On being informed of the Head’s decision not to proceed with an investigation, the employee is no longer entitled to continue their refusal under subsection 128(15).

Refusal of work during investigation

If the Head proceeds with an investigation, the employee may continue to refuse, for the duration of the investigation, to use or operate the machine or thing, to work in the place or to perform the activity that may constitute a danger.

Persons present during the investigation

If the Head proceeds with an investigation, the Head may do so in the presence of the employer, the employee and one other person who is

Employees’ representative if more than one employee

If the investigation involves more than one employee, those employees may designate one employee from among themselves to be present at the investigation.

Absence of any person

The Head may proceed with an investigation in the absence of any person mentioned in subsection (1.4) or (2) if that person chooses not to be present.

Precedent

During the Head’s investigation, the Head shall verify if there are previous or ongoing investigations in relation to the same employer that involve substantially the same issues and may

Decision of Head

The Head shall, on completion of an investigation made under subsection (1), make one of the decisions referred to in paragraphs 128(13)(a) to (c) and shall immediately give written notification of the decision to the employer and the employee.

Continuation of work

If the employee has exercised their right under subsection (1.3), the employer may, during the investigation and until the Head has issued a decision, require that the employee concerned remain at a safe location near the place in respect of which the investigation is being made or assign the employee reasonable alternative work, and shall not assign any other employee to use or operate the machine or thing, work in that place or perform the activity referred to in subsection (1) unless

Directions by Head

If the Head makes a decision referred to in paragraph 128(13)(a), the Head shall issue the directions under subsection 145(2) that the Head considers appropriate, and an employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity until the directions are complied with or until they are varied or rescinded under this Part.

Appeal

If the Head makes a decision referred to in paragraph 128(13)(b) or (c), the employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision, in writing, to the Board within 10 days after receiving notice of the decision.