Canada Labour Code

Marginal note:Head’s investigation

• 129 (1) 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

  • (a) the matter is one that could more appropriately be dealt with, initially or completely, by means of a procedure provided for under Part I or III or under another Act of Parliament;

  • (b) the matter is trivial, frivolous or vexatious; or

  • (c) the continued refusal by the employee under 128(15) is in bad faith.

• Marginal note:Notices of decision not to investigate

  (1.1) 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.

• Marginal note:Return to work

  (1.2) 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).

• Marginal note:Refusal of work during investigation

  (1.3) 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.

• Marginal note:Persons present during the investigation

  (1.4) 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

  • (a) an employee member of the work place committee;

  • (b) the health and safety representative; or

  • (c) if a person mentioned in paragraph (a) or (b) is not available, another employee from the work place who is designated by the employee.

• Marginal note:Employees’ representative if more than one employee

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

• Marginal note:Absence of any person

  (3) 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.

• Marginal note:Precedent

  (3.1) 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

  • (a) if there was a previous investigation, rely on the findings of that investigation to decide whether a danger exists; or

  • (b) if there is an ongoing investigation, combine that investigation with the investigation the Head is conducting and issue a single decision.

• Marginal note:Decision of Head

  (4) 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.

• Marginal note:Continuation of work

  (5) 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

  • (a) the other employee is qualified for the work;

  • (b) the other employee has been advised of the refusal of the employee concerned and of the reasons for the refusal; and

  • (c) the employer is satisfied on reasonable grounds that the other employee will not be put in danger.

• Marginal note:Directions by Head

  (6) 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.

• Marginal note:Appeal

  (7) 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.