Employer did everything it could to accommodate freezing workers

There is no duty for workers to continue to work when it’s too cold. But nor is there a duty for an employer to pay those who choose to leave, according to the Ontario Labour Relations Board.

There is no duty for workers to continue to work when it’s too cold. But nor is there a duty for an employer to pay those who choose to leave, according to the Ontario Labour Relations Board.

Jan. 9, 2004, was a very cold day. Less than two hours into their shift, a number of workers at Canac Kitchens expressed concern the –12C temperature in the shipping area was a health and safety issue. About 35 employees met with their manager, the plant manager and the union’s occupational health and safety representative.

There had been complaints about the cold in the past. On this occasion the workers were told steps were being taken. Other than allowing more frequent breaks to warm up, and providing hot drinks, there was nothing the company could do that day.

The workers were given the option of going home and about a third of them did. They were not paid for the remainder of their shift — about seven hours. The workers who went home filed an action. They claimed not being paid for a full day amounted to a reprisal under s. 50 of the Ontario Health and Safety Act. They were given two untenable options — stay and work in a hazardous workplace or go home and lose seven hours pay. Both options were unacceptable and unreasonable, they said.

Canac denied there was any reprisal. There was no intention to penalize the workers. The company’s response to the situation was reasonable and accommodating and workers were told if they chose not to work it would not be held against them.

If Canac had indicated that workers who went home would be paid, then all the workers would have chosen that option, it said. The board agreed with Canac. While the workers’ frustration with their limited and unappealing options was understandable, there was no evidence of an intention to penalize them, which is a requirement for s. 50 of the act to apply.

Canac acted reasonably while trying to keep as many workers as possible on the job. In most cases an employer is prohibited from exposing workers to risk and allowing them to work. But in this instance, given different people’s tolerance for cold, the company was within its rights, the board said.

For more information see:

•Lahoz v. Canac Kitchens, 2005 CarswellOnt 3602 (Ont. L.R.B.)

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