Liability if employee refuses to follow OHS policy (Toughest HR 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?
By Brian Kenny
|Canadian HR Reporter|Last Updated: 11/19/2013

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 wearing protective headgear or following 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 its 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 if the employee refused 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.