The Federal Court of Appeal recently ruled that all federal employers, with employees working outside employer controlled facilities, must be inspected. In a 2-1 split decision, the Court held that the workplace health and safety committees, or the health and safety representatives, must inspect every part of the workplace, including workplaces not controlled by the employer, at least once per year.
This decision arose from a workplace complaint filed by a Canada Post employee stating that only a Canada Post building in Burlington, Ontario was being inspected by the health and safety committee when the employee alleged that the letter carrier routes should also be inspected.
This complaint resulted in an order by a federal Health and Safety Officer (HSO), stating that Canada Post:
…failed to ensure that the work place health and safety committee inspects each month all or part of the workplace such that every part of the workplace is inspected at least once per year. The work place health and safety committee's current inspection activity is restricted to the building located at 688 Brant St. in Burlington, Ontario.
The restriction of the inspection to the Canada Post building violated s. 125(1)(z.12) of the Canada Labour Code:
Specific duties of employer
125(1) without restricting the generality of section 124, every employer shall, in respect of every workplace controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,
(z.12) ensure that the workplace committee or the health and safety representative inspects each month all or part of the work place, so that every part of the workplace is inspected at least once each year.
An Appeals Officer varied the HSO's direction concluding that the inspection obligation did "not apply to any place where a letter carrier is engaged in work outside of the physical building." While the term "work place" is broadly defined by the Canada Labour Code, the Appeals Officer determined that s. 125(1) clearly distinguishes between circumstances where the employer controls the workplace and those where it does not. Canada Post had no control over the points of call and lines of route and therefore, cannot fix hazards. In essence, to require an inspection of each point of call would be absurd. The Appeal Officer's decision was appealed to the Federal Court where it was upheld as "reasonable".
Justice Nadon and Justice Rennie of the Federal Court of Appeal found that the Appeals Officer's interpretation constituted, in effect, a redrafting of the provision. Section 125(1) of the Canada Labour Code is clear and unambiguous. It sets out two circumstances in which an inspection must be conducted by the health and safety committee or representative: (1) when the employer controls the work place in which the employees work; and (2) where the employer does not control the work place but controls the work activity of the employees in that work place. The Court found there was simply no other way this provision could be interpreted: if one of the two circumstances is met, there must be an inspection at least once a year.
This decision will impact all employers under the Canada Labour Code, especially transportation and telecommunications employers who send employees to work in private residential homes, in confined spaces, or overseas.
The decision has been appealed to the Supreme Court of Canada.