OHS Act

Published Date: October 01, 2013
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Section 35 Existence of imminent danger

(1) No worker shall

(a) carry out any work if, on reasonable and probable grounds, the worker believes that there exists an imminent danger to the health or safety of that worker,

(b) carry out any work if, on reasonable and probable grounds, the worker believes that it will cause to exist an imminent danger to the health or safety of that worker or another worker present at the work site, or

(c) operate any tool, appliance or equipment if, on reasonable and probable grounds, the worker believes that it will cause to exist an imminent danger to the health or safety of that worker or another worker present at the work site.

(2) In this section, “imminent danger” means in relation to any occupation

(a) a danger that is not normal for that occupation, or

(b) a danger under which a person engaged in that occupation would not normally carry out the person’s work.

(3) A worker who

(a) refuses to carry out work, or

(b) refuses to operate a tool, appliance or equipment

pursuant to subsection (1) shall, as soon as practicable, notify the worker’s employer at the work site of the worker’s refusal and the reason for the worker’s refusal.

(4) On being notified under subsection (3), the employer shall

(a) investigate and take action to eliminate the imminent danger,

(b) ensure that no worker is assigned to use or operate the tool, appliance or equipment or to perform the work for which a worker has made a notification under subsection (3), unless

(i) the worker to be so assigned is not exposed to imminent danger, or

(ii) the imminent danger has been eliminated,

(c) prepare a written record of the worker’s notification, the investigation and action taken, and

(d) give the worker who gave the notification a copy of the record described in clause (c).

(5) The employer may require a worker who has given notification under subsection (3) to remain at the work site and may assign the worker temporarily to other work assignments that the worker is reasonably capable of performing.

(6) A temporary assignment under subsection (5), if there is no loss in pay, is not disciplinary action for the purposes of section 36.

(7) If a worker who receives a record under subsection (4)(d) is of the opinion that an imminent danger still exists, the worker may file a complaint with an officer.

(8) An officer who receives a complaint under subsection (7) shall prepare a written record of the worker’s complaint, the investigation and the action taken and shall give the worker and the employer a copy of the record.

(9) A worker or an employer who receives a record under subsection (8) may request a review of the matter by the Council by serving a notice of appeal on a Director of Inspection within 30 days from the date of receipt of the record.

(10) After considering the matter, the Council may by order

(a) dismiss the request for a review, or

(b) require the employer to eliminate the imminent danger.

(11) An appeal lies to the Court of Queen’s Bench from an order of the Council on a question of law or a question of jurisdiction and on hearing the matter the Court may make any order, including the awarding of costs, that the Court considers proper.

(12) An appeal under subsection (11) shall be made by way of application within 30 days from the date that the order of the Council is served on the person appealing the order of the Council.

(13) The commencement of an appeal under subsection (11) does not operate as a stay of the order of the Council being appealed from except insofar as a judge of the Court of Queen’s Bench so directs.