Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends e LJHSC representative at the Burl- ington Depot submitted a complaint with Human Resources and Skills Development Canada (HRSDC) that only part of the work- place was being inspected and letter carrier routes should be inspected as well. HRSDC sent a health and safety officer to investigate the complaint. e health and safety officer found Canada Post had violated the Canada Labour Code by failing to ensure the LJHSC inspected all or part of the workplace on a monthly basis so each part of the workplace was inspected at least once a year. e code states that "every employer shall, in respect of every workplace controlled by the employer and, in respect of every work activity carried out by an em- ployee in a workplace that is not controlled by the employer, to the extent that the employer controls the activity" carry out such inspec- tions. e officer ordered Canada Post to take steps to stop this contravention. Canada Post appealed the order, argu- ing the officer's interpretation of "work- place" in the code was too broad. Including the routes as a whole and each stop on the routes of letter carriers as part of health and safety inspections would create "an absurd result," said the corporation. Canada Post submitted that it didn't have control over delivery locations or hazards that may arise, so the question of control should factor into what constitutes a work- place for the purposes of safety inspections. e union countered that while Canada Post didn't control the workplace locations along delivery routes, it controlled the activ- ity on those routes, which meant the code's requirement for inspections applied. Inspection order for letter carrier routes rescinded An appeals officer found that health and safety legislation was designed to prevent ac- cidents and injuries at work, so "workplace" should be interpreted broadly so as much as possible could be done to avoid them. How- ever, the officer noted that "the purpose of the workplace inspection obligation is to permit the identification of hazards and the opportunity to fix them or have them fixed. Control over the workplace is necessary to do so." Ultimately, the appeals officer deter- mined that the requirement to inspect all parts of the workplace at least once a year did not apply "to any place where a letter carrier is engaged in work outside the phys- ical building" as Canada Post did not have control over where the letter carriers per- formed their work. e officer also pointed out, in rescinding the order, that Canada Post "has many policies, programs and as- sessment tools that evaluate and promote the health and safety of their employees in all elements of their work." e union appealed this decision to the Federal Court, seeking a reinstatement of the health and safety officer's original con- travention order. It reiterated the argument that Canada Post controlled the work ac- tivities on letter carrier routes and points of call, right down to how the carriers walk the routes, and the corporation had the ability to take action to address and resolve haz- ards on the routes. e appeals officer's def- inition of "control" over the letter carriers' activities was too narrow and restrictive by only considering circumstances where an employer has exclusive access to alter a workplace, said the union. Canada Post argued that inspection obli- gations should differ depending on whether the employer controls the workplace or con- trols the work activity, as the latter would place a limitation on what can be inspected. For example, if the union's interpretation were to be applied, it would place a require- ment on the corporation to inspect public transportation when a letter carrier used it to get to her route, said Canada Post. In ad- dition, it couldn't enforce the requirement to ensure all permanent and temporary build- ings and structures that it neither owns nor has a right to alter to meet safety standards. e court referred to the principle stated in Elmer Driedger's Construction of Statutes, which stated that the text of a legislative act should be read in its context and normal sense, with consideration of the object of the act and the intention of Parliament when it passed the act. It found the appeals officer took this approach in finding the code drew a distinction between workplaces controlled by the employer and those that are not and not all obligations applied when the em- ployer didn't control the workplace. e court found this was a reasonable interpre- tation based on "a harmonious reading of the words in their context." Employer can't inspect areas outside its control or access e court found the appeal officer's find- ing that "the employer can only satisfy certain obligations imposed by the sub- section when in control of the workplace" was based on the fact the purpose of the re- quirement could only be achieved when the employer was able to identify and fix haz- ards — which it couldn't if it had no control or access to areas where letter carriers went on their routes. e court also found it was reasonable for the appeals officer to conclude that an em- ployer didn't control the workplace where many points of call were private property or public places, and therefore couldn't carry out inspections and accomplish the objec- tives of the inspection requirement. In addition, the court agreed with the ap- peal officer's distinction between workplace control and work activity control in deter- mining whether the inspection obligations applied. Because it was found that Canada Post didn't have control over the workplace, it wasn't necessary to address control over the work activity because the corporation was limited in what it could do to the physi- cal workplace anyway, said the court. e court found the appeals officer's deci- sion that Canada Post didn't have any control over hazards and conditions on the routes of letter carriers and therefore didn't have an obligation to inspect them was reasonable. It dismissed the union's appeal. "e appeals officer recognized that Par- liament intended to give the broadest pos- sible protection to employees including to those performing work in a place which the employer may not control," said the court. "In my view the appeals officer's interpreta- tion of (the inspection requirements in the act) demonstrates sensitivity to preserving the broad nature of the employer's obliga- tions to ensure the health and safety of its employees without placing obligations upon the employer that the latter would be unable to fulfill." For more information see: • CUPW v. Canada Post Corp., 2016 Car- swellNat 620 (F.C.). 6 | May 11, 2016 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as handling risky terminations, drugs and alcohol in the workplace, employee off-duty conduct, and workplace investigations. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Control necessary for employer to fix hazards « from WORKPLACE on page 1

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