Due diligence and the right to refuse: Allies in protection

In the workplace, employers are required to exercise due diligence toward their employees. This means that they must take preventive actions in order to reduce the risk of industrial accidents.

Exercising due diligence is of the utmost importance not only to support the health and safety of employees, but also to prevent the incidents of sanctions that employers may face by failing to perform their due diligence. The directors of a company and its representatives, including managers at all levels, may now be held personally responsible in cases of failure to exercise due diligence when serious incidents occur.

The Ontario decision R. v. Vadim Kazenelson[1] provides a good example of the serious repercussions that may result from such a failure. This decision was made after four workers died and a fifth was seriously injured at a company that performs work on high-rise buildings. The Court found that these serious consequences were a direct result of the collapse of the swing stage used at elevated heights by the workers, coupled with other factors: they lacked the required safety equipment, the platform was over its weight capacity, and the workers' faculties were impaired by marijuana. In addition to the serious violations of safety and diligence rules that were committed by other stakeholders, the manager in charge of the project and the supervisor, who was one of the five victims, were both aware of and condoned the situation.

While the deceased supervisor could not be sanctioned, the Court nevertheless found the project manager guilty under the Criminal Code of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm, for which a sentence of three years of incarceration was imposed. The company, through its manager's acts and omissions, was also found guilty of criminal negligence causing death and bodily harm and was fined $750,000. Lastly, the president of the company was held personally criminally accountable and was sentenced to a fine of $90,000.

In Quebec, in the recent case R. v. Fournier,[2] a worker died after he was working in a hole in the ground and the sides of the hole collapsed. Again under the Criminal Code, the owner of the company was charged not only with criminal negligence but also with manslaughter. While the case has not yet been judged on its merits, nevertheless the Superior Court made the preliminary finding that a violation under section 237 of the Act Respecting Occupational Health and Safety (hereinafter the "AOHS") could result in a charge of manslaughter.

Although the obligation to exercise due diligence is recognized and increasingly enforced in the workplace, a number of industrial accidents still occur that could have been prevented by the implementation of appropriate preventive measures. Above and beyond their obligation to exercise due diligence, employers must monitor their workers' behaviour and listen to their concerns in order to identify potential dangers they report at the source. In addition, recognition of employees who exercise the right to refuse to work in unsafe conditions is a good way to prevent industrial accidents.

Section 12 of the AOHS provides that a worker has a right to refuse to perform particular work if he has reasonable grounds to believe that the performance of that work would expose his health, safety or physical well-being to danger, or would expose another person to a similar danger. However, this right to refuse is subject to several conditions, namely that the worker must:

1. be considered a worker within the meaning of the AOHS;
2. be performing the work at the employer's request;
3. perceive a danger to himself or to others;
4. base this belief on reasonable grounds;
5. perform the task under abnormal conditions;
6. not directly jeopardize the safety of another person;[3] and
7. report his refusal to the employer as soon as possible.[4]

On being informed of an employee exercising the right to refuse, the employer shall request a meeting with the safety representative or the representative of the certified association, or, if none is available to meet, they may call upon any other worker designated by the worker who exercises this refusal.[5] The employer and representative must confirm the existence of the reported danger; otherwise, the employer cannot have the work performed by another individual. Three scenarios are then possible:

1. The employer and representative may find that the refusal is reasonable and justified by the existence of a danger. The worker may then return to his duties once corrective measures have been taken and the source of danger has been eliminated.
2. The employer and representative may find that there is no danger justifying the employee's refusal. In that case, if the employee continues to refuse, the employer may have the work performed by another worker. However, that other worker must first be informed that a right of refusal has been exercised, and of the reasons given for it.[6] The worker may require the intervention of an inspector.[7]
3. The employer and representative may also disagree on whether the refusal is reasonable and whether a danger exists. The intervention of an inspector will then be required by either the safety representative who believes the refusal is reasonable[8] or the employer who believes that performing the work does not expose the worker to danger.[9] In this event, the employer cannot have the work performed by another worker.

In the past five years, a number of decisions have been made regarding an employee who exercised the right to refuse. In particular, the right to refuse exercised by employees in the following situations was found to be valid: filling propane tanks without the required certification;[10] using a non-compliant and dangerous forklift;[11] being present at a workplace where bullying jeopardized the worker's safety;[12] cleaning sewers using an unsafe work method;[13] driving outside of normal work hours when the worker was exhausted;[14] and lifting heavy boxes for an extended period of time when this was not one of the worker's usual duties, presenting a risk of back injury.[15]

All of these situations demonstrate a potential, but not certain, existence of danger. However, had the workers not exercised their right to refuse, that danger may have materialized and resulted in tragic consequences, not only for the worker, but also for the employer and its representatives.

Therefore, workers play a key role and may be the first to identify sources of danger, particularly by exercising the right to refuse. However, the manifestation of this right may take various forms and be exercised in various ways. The exercise of this right may even be indirect or unclearly stated, mainly when workers do not have the necessary support.

In addition to demonstrating proactive due diligence, employers must remain vigilant and be able to recognize a worker exercising the right to refuse as soon as it happens, which may identify a work environment where the health and safety of employees are jeopardized. Furthermore, a sincere and honest consideration of the issues the worker is experiencing and reporting is a key factor in exercising due diligence. This approach is essential for any employer who wishes to fulfill this obligation.

Article written by:

Elisabeth Gauthier, Associate

Pierre Pilote, Partner

*With thanks to Renaud Charest, law student.