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The workplace — where does it take place?

Defining what exactly is the workplace and who’s responsible for keeping it safe isn’t always cut and dried

By Jeffrey R. Smith

When you go to work, do you know the exact point when you’re actually at work? When are you in your workplace? These are questions that aren’t as easy for some workers as others — questions that are important when it comes to who has control over what’s happening to workers and what elements of workplace safety employers are responsible for.

All employers have a legal obligation to ensure workers are as safe from hazards as possible while the workers are doing their jobs. Under most health and safety legislation, this includes taking all reasonable steps necessary to ensure a safe workplace and conducting regular evaluations of safety in the workplace. But for some employers, this isn’t as easy as it seems.

There are many occupations out there where workers don’t do their jobs in one location and are required to travel to many places that aren’t owned or controlled by the employers — such as cable technicians, telephone company technicians, and postal workers, to name a few. And it’s the latter occupation that came to light in a recent Federal Court decision over how responsible an employer is in protecting workers from hazards when those workers are in privately-owned or public places.

Canada Post faced a dilemma regarding workplace safety when a health and safety officer ordered it to conduct regular safety inspections of not just its mail depot buildings, but also the places on its letter carrier routes. Even though the routes consisted of privately-owned areas as well as public spaces, the officer found Canada Post controlled the actions of its employees in those areas, if not the areas themselves, which made the routes subject to Canada Labour Code requirements for safety inspections.

Canada Post appealed to an appeals officer, who overturned the decision. The appeals officer found that Canada Post didn’t have any control over the private and public spaces on its letter carrier routes and therefore couldn’t be expected to be able to control the many hazards on them. The best the corporation could do was offer policies and recommendations to promote the health and safety of its employees, which it did.

The Canadian Union of Postal Workers appealed this decision to the Federal Court, but the court agreed with the appeals officer. The court found the appeal officer’s finding that “the employer can only satisfy certain obligation imposed by the subsection when in control of the workplace” was tied to the purpose of the requirement, which could only be achieved when the employer was able to identify and fix hazards — something it couldn’t do without no control or access to areas where letter carriers went on their routes: see CUPW v. Canada Post Corp., 2016 CarswellNat 620 (F.C.).

Essentially, the Federal Court identified the workplace — for health and safety reasons — was limited to areas the employer could exert control over, not necessarily where workers go while on the job.

This debate over what is the workplace brings to mind the Ontario Court of Appeal’s 2013 overturning of a lower court decision that a swimming pool where a hotel guest died was a workplace — even though no workers were present at the time of the death: see Blue Mountain Resorts Ltd. v. Bok, 2013 CarswellOnt 1337 (Ont. C.A.).

Both these decisions were the result of efforts to broaden the definition of a workplace to include circumstances that may be outside of the employer’s control — which in both decisions was referred to as “absurd” by the respective employers.

What exactly should be considered a workplace? If workers are carrying out their duties outside of the employer’s property, to what extent should employers be responsible for their safety? If there’s an accident in an area where employees sometimes go but aren’t there at the time of the accident, should that have consequences for the employer?

A place where you’re working may be a workplace, but not necessarily your employer’s workplace.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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