Threat of damage to or loss of property - Exceptions - Canada Labour Code, Part III - Division I - 802-1-IPG-093
Coming into force: September 1, 2019
Note: In accordance with the Interpretation Act, words in the following text importing male persons include female persons.
The purpose of this IPG is to define the expression, "threat of damage to or loss of property" as it appears in sections 169.1, 169.2, 173.01, 173.1, 174.1 under Division I, Part III of the Canada Labour Code (Code).
The exception to certain labour standards obligations related to the expression "threat of damage to or loss of property" only applies if it has previously been established that a "situation that the employer could not have been reasonably foreseen," as defined in IPG802-1-IPG-091, had occurred and there was evidence of an "imminent or serious threat," as defined in IPG802-1-IPG-092.
The following provisions have been added to the Canada Labour Code, Part III:
- break - 169.1
- rest period between work periods or shifts - 169.2
- notice - work schedule - 173.01
- notice - change to a work shift or period - 173.1
- limited right to refuse overtime to meet family obligations - 174.1
These amendments come into force on September 1, 2019.
The interpretation and application of the expression, "threat of damage to or loss of property" must be standardized nationally. Therefore, the two following questions will be addressed:
- what is the scope of the expression, "threat of damage to or loss of property"in relation to the above-mentioned sections?
- what criteria must an inspector review to determine whether a situation may have posed such a threat to an employer?
"Damage to or loss of property" in this context 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, equipment...), resulting in the total or partial loss of the value of the property. By property, we mean material and monetary assets.
To be justified, the threat of damage to or loss of property must be real and must be direct or indirect consequence of a fault, omission or event beyond the employer's control (weather, legal, etc.). The cause may not be a combination of randomly listed items, neither the consequence of the employer that has failed to maintain its equipment in good working order.
To reach a finding, the inspector will first assess whether the situation at issue was reasonably foreseeable, and then examine the risk of damage, the severity of the suspected damage and the direct impact of the property loss. However, there is no pre-established threshold to determine or measure the severity or proportionality of damages to material and financial property. Therefore, the inspector must assess each situation in its entirety, based on the context and on the information provided by the employer or the employee.
The inspector will use this interpretation to decide on the matter of exceptions relating to the employer obligation to provide breaks, rest periods between shifts, an advance work schedule or notice of a work shift change, or preventing employees' from exercising their right to refuse overtime because of a family obligation.
- A delay in the delivery of the goods could not be considered a "threat of damage or loss of property" if the goods are expected to be delivered to their final destination in their original condition. However, in some cases, a delay in delivery may result in a "threat of damage or loss of property". For example, in the transport of perishable goods (fresh fruit, live animals, etc.) or goods that need to be protected against theft (large quantities of foreign currency, precious stones/precious jewellery, uranium), a significant delay in their delivery or leaving the transport vehicle unattended could constitute a serious or imminent threat of damage or loss.
- Despite all the IT security measures put in place by an employer in the banking sector to protect against potential cyber attacks, part of its banking network has been affected by a new type of virus that has successfully thwarted most of its protection measures. This attempt at hacking, which came from outside the bank and was the result of a technique never seen before, highlighted shortcomings in the bank's security system, which is 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. Since this situation is beyond what is reasonably foreseeable and the seriousness of the situation could cause major damage to the employer, the exception to the right to refuse to work overtime applies.
- 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.
On 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, it 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, and the mechanic files a complaint that the employer failed to respect his right to refuse overtime.
The facts gathered by the inspector show that:
- the employer could not have 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 would not be found in violation of the Code since the conditions governing the exception to the employee's right to refuse overtime were met.
- Despite many efforts by an employer in the banking sector to protect against potential threats, a new type of cyber attack has thwarted all the protection measures in place. This attempt at hacking, which came from outside the bank and was the result of a technique never before seen, highlighted shortcomings in the security of the bank's customers' personal data. Employees of the bank's IT support department work from 4 p.m. to midnight Monday to Friday. In order to strengthen network security without delay, on the day the hacking attempt occurred, the manager of these employees asked some of them to return to work at 7 a.m. the next morning. The employees showed up for this new shift, but some complained that the bank had not given them the 8 hours of rest between two shifts provided for in the Code. Since the situation is beyond what is reasonably foreseeable and the seriousness of the situation could cause major damage to the employer, the exception to the obligation to grant a minimum rest period of eight hours applies. The employer was then entitled to ask them to report for work.
- A flour mill became infested with an unknown insect that attacks grain stored in silos at a phenomenal speed. The insect in question has never been seen 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 employer would be exempted from its obligation to provide a 24-hour notice of a schedule change, a 30-minute break between during the period of five consecutive hours of work, and a rest period of at least eight 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 over time to carry out family responsibilities would apply.
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