- Legal Obligations
- Labour Code and Health and Safety Legislation
- Absence of Policy
- Other Consideration
Legal Obligations
All organizations have a legal duty of care to their employees. The employment relationship extends to ensure that employees have a reasonably safe work environment1.
The employers’ legal obligations include taking reasonable steps to warn the affected individuals of the nature and extent of the risks2, both before and during the deployment, if conditions change. Employers’ also have a legal obligation to train their staff to avoid and/or mitigate the risks of dangerous situations and criminal acts, such as violent robbery or kidnapping.
In Canada, the requirement to provide a reasonable level of duty of care is enshrined in the Criminal Code. Bill C-45 is federal legislation that amended the Canadian Criminal Code and came into effect on March 31st, 20043. Bill C-45 added Section 217.1 to the Criminal Code which reads:
"217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task."
Bill C-45 also added Sections 22.1 and 22.2 to the Criminal Code, imposing criminal liability on organizations and their representatives for negligence (22.1) and other offences (22.2).
There have been a number of criminal prosecutions against "senior officers" of companies. In a 2011 ruling, the court found that:
- In criminal negligence cases there does not have to be a positive intention for the result of the act.
- There was a clear breach of the duty of care imposed on an employer under s.217.1 of the Code – the duty to take reasonable steps to prevent bodily harm to a worker. After a joint submission from the Crown and the Defendant on sentence, the Court imposed a conditional sentence of imprisonment of two years less a day. The sentence will be served in the community with conditions, including a curfew.4
The risks faced by employees overseas may come from the intentional actions of a third party. However, that does not limit the liability for the employer 5.
Any relationship which includes elements of proximity, including a relatively high degree of foreseeability as to the risks of harm from third party actions, may also suffice to create a duty to take positive action on behalf of another person to reduce the risk of such harm. International travel of a person by or at the specific request, and for the benefit of the employer to a location in which a high level of significant risk is fairly predictable would constitute such a relationship.
Thus, the tort obligations extend to contractors and employees of contractors, as well as regular employees. Citizenship is irrelevant. In the case of locally-engaged staff, the standard of care might be modified to reflect their familiarity with local conditions and risks.
A duty of care is merely the first area that needs to be addressed in a negligence analysis. A duty of care arises when the employer becomes involved in sending specific employees into particular danger. However, the more important question is: what needs to be done, practically speaking, to fulfill the obligation to act with reasonable care in the circumstances?
This is the “standard of care” issue. Employers are expected to take practical steps to safeguard their employees against any reasonably foreseeable dangers. Breaching duty of care, or not achieving a “reasonable standard of care” may give rise to an action alleging negligence which may result in damages or in the criminal prosecution of the employer.
This obligation may apply both to acts of commission and omission. Liability could result if the risk to the workers is increased by virtue of something done, or omitted to be done, by an organization which ought reasonably to have been done, given all the circumstances. Depending on the circumstances, failing to provide appropriate and available training to detect, avoid or survive high risk situations could actually contribute to the risk, triggering liability.
The legal concept of duty of care presumes that organizations, and the individuals within them, have legal obligations to act toward others in a prudent and cautious manner, to avoid the risk of reasonably foreseeable injury to others. Duty of care requirements may be imposed by statute (legislation), discussed below, and by common law. Duty of care is also the result of cultural and social expectations of acceptable standards of care. In that sense, employers also have a moral, as well as a legal, responsibility and obligation for the health, safety, and security of their employees.
Back to topLabour Code and Health and Safety Legislation
Canada Labour Code
This duty of care includes:
- Employees need to be made aware of every known and foreseeable health or safety hazard;
- Prevention programs appropriate to the work place must be developed, implemented, and monitored;
- Employees must be educated on health and safety matters; and
- Health safety policies and programs must be developed.
Occupational Health and Safety Legislation in Canada
OH&S is provincially managed in Canada however a large number of basic elements are similar in all jurisdictions6. This includes: the rights and responsibilities of workers, responsibilities of employers and supervisors, as well as other key issues.
WITH RESPECT TO INTERNATIONAL TRAVEL AND WORKING ABROAD:
A manager or supervisor must:
- Advise workers of potential and actual hazards
- Take every reasonable precaution in the circumstances for the protection of workers
An employer must:
- Train employees about any potential hazards…and how to handle emergencies
- Take every reasonable precaution to ensure the workplace is safe
The other key “catch-all” identified by the Canadian Centre for Occupational Health and Safety (CCOHS) is the requirement for Due Diligence7.
- Due diligence is the level of judgment, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances.
- Applied to occupational health and safety, due diligence means that employers shall take all reasonable precautions, under the particular circumstances, to prevent injuries or accidents in the workplace. This duty also applies to situations that are not addressed elsewhere in the occupational health and safety legislation.
- To exercise due diligence, an employer must implement a plan to identify possible workplace hazards and carry out the appropriate corrective action to prevent accidents or injuries arising from these hazards.
- Due diligence is important as a legal defense for a person charged under occupational health and safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.
Ontario's Occupational Health and Safety Act (OHSA) and Bill 168
The OHSA defines the workplace as whether the worker is being directed and paid to be there, or near there.
The OSHA places several general duties related to traveling employees (and employees abroad). In Ontario, employers have the duty to provide information and instruction to employees. Employers must also take every reasonable precaution under the circumstances to protect their workers.
Under the OHSA employees can refuse to work if they feel that the level of risk is too high, or if they feel that they have not been properly prepared for the work. Therefore, the OHSA is linked to risks abroad however, unlike other countries8 9 10 11, the extension of violence in the workplace abroad has yet to be tested in court. At the same time outside contractors and their employees, while in federal workplaces, are under provincial jurisdiction. Thus the OHSA has already been extended into a workplace and environment that does extend legislation overseas.
Absence of Policy
Currently, in Ontario and in other provinces, there is an absence of policy and guidance for companies with employees who travel.
A number of English Law precedents have been set, giving rise to strong possibility of success in a liability case brought against an employer.
Companies will be tested against what is reasonable given the risks and threats faced by employees, as well as against what is available in terms or risk mitigation factors such as policies, plans and training, and what can be considered as best practice in these area.
Cost Comparison
Cost of a lack of duty of care
- Cost of an incident/injury to the victim(s) (i.e., loss of life, emotional distress, lost earnings)
- Cost of medical expenses, treatment, evacuation, and repatriation
- Cost of sick pay for employee
- Cost of diversion of resources (financial and human)
- Cost of extensive executive resources to deal with the situation
- Property and economic damage
- Cost of business interruptions, downtime, closure of a site
- Cost of employment litigation
- Cost of damages resulting from liability
- Cost of fines and penalties under relevant laws
- Costs of insurance premiums rising as a result of the incident
- Costs of morale and productivity loss
- Cost of loss of potential employees who cannot be recruited
- Costs of replacing employees who leave
- Potential for bankruptcy
- Cost of the loss of goodwill
- Impact on stock price12
Cost of providing Duty of Care
- Cost of developing a risk management plan
- Cost of compliance and training
- Cost of insurance coverage
Other Considerations
Due Diligence:
- Risk management plans should be synchronized with the Government of Canada response plans.
- Trainers should be able to show qualifications and experience. Training should relate to the organizational plans and policies.
- Psychologists providing training or support, such as post captivity, should be able to show qualifications and experience (in accordance with American Psychological Association (APA) and Canadian Psychological Association (CPA) guidelines).
- Policy developers should either be familiar with, or get qualified on, best practice on areas such as training, incident management, family support plans and post captivity support in order to limit personal and organizational liability.
