Threat of damage to or loss of property - Exceptions - IPG-093
Effective date: September 1, 2019
Revised date: January 9, 2023
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Subject
This Interpretations, Policy and Guideline (IPG) intends to define the expression, "threat of damage to or loss of property". This expression appears in sections 169.1, 169.2, 173.01, 173.1, 174.1 under Division I of Part III of the Canada Labour Code (Code).
Note: This IPG does not apply to classes of employees who were granted an exemption and/or modification to specific provisions as per the Exemptions from and Modifications to Hours of Work Provisions Regulations.
Note: “employees” also includes “interns”. Student interns are not subject to the interpretation of this IPG.
The exception to certain labour standards obligations related to the expression "threat of damage to or loss of property" only applies if it is established that a "situation that the employer could not have reasonably foreseen”, as defined in IPG-091, had occurred and there is evidence of an "imminent or serious threat”, as defined in IPG-092.
Text description of situation that the employer could not have reasonably foreseen
The image is a flowchart that shows the interrelation between the 4 IPGs about "Imminent or serious", "To the life, health or safety of any person", "Of damage to or loss of property" and "Of serious interference with the operation of the establishment" which must be applied in complementarity.
Issue
The following provisions have been added to the Code:
- break - 169.1
- rest period - 169.2
- notice —work schedule - 173.01
- shift changes - 173.1 and
- right to refuse - 174.1
The interpretation and application of the expression, "threat of damage to or loss of property" must be standardized nationally. This IPG addresses the following:
- the meaning of the expression, "threat of damage to or loss of property" in relation to the above-mentioned sections
- criteria used to determine whether a situation may have posed such a threat to an employer
Interpretation
In this context, "Damage to or loss of property" means any harm, breakage, damage or disaster, whether intentional or unintentional, affecting property owned by the employer or a third party for which the employer is financially responsible:
- leased property
- goods, and
- equipment
It leads to the total or partial loss of the value of the property. Property means material and monetary assets.
The threat of damage to or loss of property must be real in order to be justified. It must also be a direct or indirect consequence of:
- a fault
- an omission, or
- an event beyond the employer's control (for example, weather or legal)
The cause may not be a combination of randomly listed items. It can also not be the consequence of the employer who has failed to maintain its equipment in good working order.
Once it is concluded that the situation was reasonably foreseeable, the following criteria must be examined to determine the presence of damages to material and financial property:
- risk of damage
- severity of the suspected damage, and
- direct impact of the property loss on the employer
However, there is no pre-established threshold to determine or measure the severity or proportionality of damages to material and financial property. Each situation is assessed in its entirety, based on the context and information provided by the employer or the employee.
This IPG is used to determine the exceptions relating to the employer obligation to:
- provide breaks
- provide rest periods between shifts
- provide a notice of work schedule or notice of a work shift change, or
- prevent employees from exercising their right to refuse overtime because of a family obligation
Examples
Example 1
A delay in the delivery of the goods is not systematically considered a "threat of damage to or loss of property". However, in some cases, a delay in delivery may result in a "threat of damage to or loss of property", for example:
- in the transport of perishable goods (for example, fresh fruit or live animals)
- goods that need to be protected against theft (for example, large quantities of foreign currency, precious stones/precious jewelry, or uranium)
- a significant delay in their delivery
- leaving the transport vehicle unattended
Example 2
A virus has affected part of a banking’s computer network. It happens despite all the IT security measures put in place by an employer to protect against potential cyber attacks. The virus has successfully thwarted most of its protection measures. This attempt at hacking came from outside the bank. This highlighted shortcomings in the bank's security system. The system intended to protect their customers' personal data. Immediately after the attack, the IT manager asked several of her employees to stay at work after their normal hours, to strengthen the bank's IT security. This situation is beyond what is reasonably foreseeable and the seriousness of the situation could cause major damage to the employer. As a result, the exception to the right to refuse to work overtime applies.
Example 3
A trucking company is currently storing a load of perishable food in its refrigerated warehouse for one of its customers. The load must leave the warehouse that morning and arrive at its destination within 18 hours. The items absolutely must be on grocery store shelves by the next day at opening time or the food will be a total loss. Getting the load to its destination involves 10 hours of driving. While inspecting the refrigerated truck, the driver notices that the thermostat that controls the food storage temperature during shipping is broken. Since the employer owns only one refrigerated vehicle, the employer asks its mechanic to repair the truck as quickly as possible. To perform the repair, the mechanic must work overtime since he has already worked his regular hours for the day. However, he refuses the overtime on the ground that he has a family obligation. The employer then requires the mechanic to repair the truck.
The facts show that:
- the employer could not have reasonably foreseen the truck's sudden breakdown
- the employer took all reasonable steps to ensure that its equipment was in good working order
- the employer has no other refrigerated vehicle to ensure that the contents of the load are delivered in accordance with existing standards
- failure to deliver could jeopardize the employer's business relationship with this client
Therefore, the employer met the conditions governing the exception to the employee's right to refuse overtime.
Example 4
A flour mill became infested with an unknown insect that attacks grain stored in silos at a phenomenal speed. No one has ever seen the insect in question before and no product is capable of stopping it. The employer could lose all of the grain in its facilities, resulting in a fatal loss to the company. In these circumstances, the exception would apply to the obligation to provide a:
- 24-hour notice of a shift change
- 30-minute break within every period of 5 consecutive hours of work, and
- rest period of at least 8 consecutive hours between work shifts
Employees asked by the employer to work overtime to confront this threat would not be able to refuse the request. The exception to the right to refuse to work overtime to carry out family responsibilities would apply.
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