The right to refuse dangerous work.

• Author: Bowal, Peter

There may, undoubtedly, be cases justifying a wilful disobedience of such an order; as where the servant apprehends danger to her life, or violence to her person, from the master; or where, from an infectious disorder raging in the house, she must go out for the preservation of her life. But the general rule is obedience, and wilful disobedience is a sufficient ground of dismissal. --Turner v. Mason (1845) 14 M. & W. 112 at 118; 153 E.R. 411 (Ex.) Introduction

Most jobs have some element of danger in them. At a minimal level, the danger associated with our employment does not go much beyond the regular hazards of being alive, such as getting to and from work every day, the stress of working with difficult people, or the infinitesimally small chance of having a meteor or airplane crash through our building. There is interest in the growing field of occupational disease, where certain occupations may be exposed to contaminants or conditions that cumulatively and slowly manifest themselves in the workers over time. Examples include firefighters inhaling toxins, professional drivers and diesel fumes, office workers and repetitive strains, and soldiers who later suffer post-traumatic stress syndrome. In this article we address acute, serious, imminent dangers encountered in performing one's job at work.

Employers have a legal obligation to protect their workers. As far back as 1845, the common law singled out danger as a proper excuse to refuse to follow the boss's orders. In the 170 years since, this common law has become codified into legislative rules and practices. The Canadian provincial and federal legislation is similar. We will describe the modern rules in this article with a reference to the Alberta legislation which does not apply to federal, interprovincial, domestic or agricultural workers.

Insubordination

Employers enjoy the prerogative to instruct their employees about what work their employees do and how they should do it. On the face of it, an employee who refuses to obey legal orders is insubordinate and subject to immediate termination for cause.

What constitutes legally unacceptable risk and danger in the workplace is usually a very contentious matter. It can be assumed that bosses are also generally concerned about safety. They certainly have the legal duty to create safe working conditions. Employers and bosses do not like to be second-guessed. If work can be vetoed by any worker on a mere unilateral assertion of a safety...