Canadian Employment Law Today

CELT Sept 18 2013:celt 467.qxd 13-09-13 10:58 AM Page 2 September 18, 2013 Ask an Expert with Brian Kenny MacPherson Leslie and Tyerman, Regina Have a question for our experts? Email jeffrey.r.smith@thomsonreuters.com. ■ HEALTH AND SAFETY: Employee chooses to ignore safety policy Question: Is an employer liable for a health and safety violation that is the result of an employee's choice to refuse to follow company policy (such as to wear protective head gear or follow a certain procedure)? Answer: In general, and under occupational health and safety legislation across Canada, an employer has an obligation to ensure, insofar as it is reasonably practicable to do so, the health and safety of the employer's workers while they are engaged in the work of the employer. Where a health and safety violation occurs, the employer may be charged with an offence. Fortunately for the employer, there may be a defence to the charges in circumstances where the employee refuses to follow the employer's rules or instructions. In this situation, the employer may argue it took all reasonable care under the circumstances and, as such, the violation was unavoidable. This is known as the due diligence defence. The due diligence defence exists because, even if an employer has taken all reasonable care with respect to health and safety issues, it nonetheless cannot prevent breaches of occupational health and safety standards when the employee either willfully, negligently, or inadvertently commits a prohibited act or fails to perform a mandatory act. For 2 example, where an employee chooses not to wear protective headgear in spite of clear and well implemented company policy requiring its use, the employer will rely on the due diligence defence to argue that it should not be held liable as it did all it could to comply. However, the employer's liability is not simply extinguished where an employee refuses to follow clearly established and implemented company policy on safety matters. As a part of the employer's duty, where an employee refuses or neglects to follow safety protocol established by an employer and the employer becomes aware of the refusal or neglect, the employer is obligated to prevent the employee from continuing to work in an unsafe manner. If the employer does not take reasonable steps to address the unsafe work conditions, it may be liable for any resulting loss. As such, the employer is generally justified in refusing to allow the employee to work in unsafe circumstances, should the employee refuse to comply with the rules. The employer may also take further action in the form of discipline, depending on the type of action or omission committed and its severity. In R. v. Lonkar Well Testing Ltd., a 2009 Alberta case, an employee disobeyed a direct order to cease any further work on a pressure vessel once he had completed the assigned task, due to the possibility of physical harm to himself and others. Rather than waiting for the return of a supervisor as instructed, the employee continued to dismantle the pressure vessel and died as a result of the gases released. The central issue in the case was the extent to which the employer had given sufficient warnings to the employee regarding the dangers of the gas vapours. Ultimately, it was decided the employer had taken all reasonable care in the circumstances. The employee had been sufficiently warned and should have been aware of the risks involved. The defence of due diligence was established and the original conviction of the employer was quashed. Finally, it should be noted an employee also has a duty while at work, under the relevant occupational health and safety legislation, to take reasonable care to protect her own safety and the safety of coworkers who may be affected by her actions. Furthermore, an employee is required to comply with the direct orders of her employer in the first instance. If the employee disagrees with the order, her recourse is to challenge the validity of the order afterwards. The only exception involves cases relating to orders which may endanger the employee's health or safety, require an illegal act, or expose the employee to potential legal liability. In general, if the employee refuses to follow the employer's safety policies, there may be legal consequences for the employee personally if injury results to that employee or a co-worker, in addition to possible disciplinary consequences. ■ TERMINATION: Having a say in termination package Question: Do terminated employees have any say in how their termination package is handled? If the employee makes a direct request, how should the employer handle it? Answer: Terminated employees do not have any power in determining how their termination package is handled, but an employer could choose to comply with the requests of the employee if it so desired. While the employer may comply with such a request or negotiate with the employee, the employer is under no obligation to do so. When assessing the terms of an employee's termination package, it is prudent to review the employment contract first to determine whether any contractual obligations govern the package. If the contract does not speak to the subject of termination packages, the matter is open for negotiation in the sense that it would be possible for an employee to make certain requests on the way it is to be handled. Ultimately, the employer will determine what it is prepared to provide over and above its statutory obligations as set out in the relevant labour standards legislation. Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 7

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