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Control or No Control? That is the question for Federal Employers and Health and Safety Inspections

Federal Employers should be aware that the Federal Court has limited the scope of what constitutes a “workplace” for the purpose of health and safety inspections. Similar to Provincial Employers, Federal Employers are required to have inspections for health and safety under Part II of the Canada Labour Code. Prior to the decision in Canadian Union Postal Workers v Canada Post Corporation 2016 FC 252 there was some confusion on what locations employers were required to allow their health and safety committee to inspect under section 125(1) which referenced both work place and work activity. With the Federal Court decision federal employers can take heart that they will only be required to conduct inspections in workplaces where the employer exercises control.

In this case, the Employer had inspections by its Joint Health and Safety Committee at its physical building in Burlington, Ontario; however, it did not have inspections along its letter carrier routes. The Health and Safety Officer that responded to an employee complaint found that the employer was in breach of the Code by limiting inspections to only the physical building. This appeared to mean that if the Employer directed the work that the employer was responsible to inspect the location. In this case that would have created responsibility for routes that extended on to private property. However, the Employer was successful on appeal as the Appeals Officer held that a workplace should not include the routes and each point of call for letter carriers. The Appeals Officer relied on a strict interpretation of section 125(1) to conclude that when the employer did not exercise control of the location that no inspection obligation could exist. The Appeals Officer also noted that the purpose of the inspections is to identify and fix hazards which would not be served if the employer did not control the workplace.

The Federal Court upheld the Appeals Officer’s decision on the basis that the purpose of the inspections can only be achieved when the employer is in control or in the position to identify and fix hazards. The Court recognized that the Appeals Officer’s interpretation continued to create a broad obligation on employers to ensure health and safety but did not create obligations that would be impossible to fulfill.

This decision is important to any federal employer who has employees working in different locations outside of a controlled workplace, such as telecommunication employees installing systems at individual residences, truck or rail drivers making deliveries to different points of call or airline employees working at airports. Based on this decision the key question employers should ask to determine if they are fulfilling their inspection obligation is if they control the workplace. Despite this limitation employers should continue to take steps to ensure the health and safety of their employees; however, the Code will not impose unreasonable expectations or requirements for inspections.  

Click here for a list of lawyers at CCPartners who are familiar with the unique provisions of the Canada Labour Code and are available to assist federal employers in navigating health and safety concerns as well as any other workplace issues.