Federally-regulated employers now have clear guidance from the
Federal Court regarding what constitutes a "workplace"
for the purposes of health and safety inspections.
In a recent judgment issued on February 26, 2016 (Canadian
Union Postal Workers v. Canada Post Corporation, 2016 FC 252),
the Federal Court limited the definition of "workplace"
for the purposes of inspections under Part II of the Canada
Labour Code (the "Code") to workplaces where the
employer exercises control.
The Canadian Union of Postal Workers (the "Union")
represents letter carriers at Canada Post (the
"Employer"). In 2012, a representative of the Union filed
a complaint with the then Human Resources and Skills Development
Canada alleging that only the physical building of the Burlington,
Ontario Depot was being inspected, whereas inspections should also
occur on letter carrier routes. Following an investigation, the
Health and Safety Officer (the "HSO") held that the
Employer had breached paragraph 125(1)(z.12) of the Code by
restricting the Local Joint Health and Safety Committee's
inspection to the physical building at the Burlington Depot.
The Employer brought an appeal of the HSO's direction. The
Appeals Officer held that the HSO erred in adopting a broad
interpretation of "workplace" to include the routes and
each point of call for letter carriers. The Appeals Officer ruled
that the obligation to inspect under paragraph 125(1)(z.12) of the
Code does not apply to any place where a letter carrier is engaged
in work outside the physical building, given that the Employer does
not exercise control over these workplaces. In the Appeals
Officer's view, the inspection obligation only arises where the
employer controls the workplace as the purpose of the inspection is
the identification and opportunity to fix hazards.
The Union sought to set aside the Appeals Officer's decision
in that respect.
The Federal Court dismissed the Union's application for
judicial review and ruled that the Appeals Officer's
determination was reasonable.
The Federal Court found reasonable the finding of the Appeals
Officer that subsection 125(1) of the Code draws a clear
distinction between control over the "workplace" and
control over the "work activity". The Court ruled that
the Appeals Officer's determination that the Employer can only
satisfy certain obligations imposed by subsection 125(1) when in
control of the workplace was "not driven by an impracticality
assessment but rather a determination that the underlying purpose
of paragraph 125(1)(z.12) can only be achieved where the employer
is in a position to both identify and fix hazards."
The Court noted there was no dispute that the Employer does not
exercise physical control over points of call or lines of routes.
Similarly, there was no dispute that many of the points of call are
private property. On that basis, it was reasonable for the Appeals
Officer to come to the conclusion that the Employer did not
exercise control over the workplace and, as such, could not
effectively carry out an inspection and accomplish the underlying
purpose of paragraph 125(1)(z.12) of the Code.
In conclusion, the Court held that the Appeals Officer's
ruling "demonstrated sensitivity to preserving the broad
nature of the employer's obligation to ensure health and safety
of its employees without placing obligations upon the employer that
the latter would be unable to fulfill."
Impact For Employers
As a result of this decision, it is now clear that the
definition of "workplace" for the purposes of inspections
under Part II of the Code is limited to workplaces over which the
employer exercises control.
This ruling will be particularly relevant to employers with
employees working in different locations outside of the controlled
workplace, such as airline employees working at airports, truck
drivers making deliveries to different points of call or
telecommunication employees installing telecommunication systems at
an individual's residence.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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