Employee chooses to ignore safety policy

Who has liability for employee's own choice?
By Brian Kenny
|Canadian Employment Law Today|Last Updated: 09/18/2013

Question: Is an employer liable for a health and safety violation that is the result of an employee's choice to refuse to follow company policy (such as to wear protective head gear or follow a certain procedure)?

Answer: In general, and under occupational health and safety legislation across Canada, an employer has an obligation to ensure, insofar as it is reasonably practicable to do so, the health and safety of the employer's workers while they are engaged in the work of the employer. Where a health and safety violation occurs, the employer may be charged with an offence. Fortunately for the employer, there may be a defence to the charges in circumstances where the employee refuses to follow the employer's rules or instructions. In this situation, the employer may argue it took all reasonable care under the circumstances and, as such, the violation was unavoidable. This is known as the due diligence defence.

The due diligence defence exists because, even if an employer has taken all reasonable care with respect to health and safety issues, it nonetheless cannot prevent breaches of occupational health and safety standards when the employee either willfully, negligently, or inadvertently commits a prohibited act or fails to perform a mandatory act. For example, where an employee chooses not to wear protective headgear in spite of clear and well implemented company policy requiring its use, the employer will rely on the due diligence defence to argue that it should not be held liable as it did all it could to comply.