Last week I had the pleasure of presenting a class to a group of participants that were all employees of a large, well known, national chain of restaurants. These classes are usually characterized by lively interactions with participants who are genuinely interested in the subject (a presenter’s dream), which as far as I know is indicative of the “corporate culture” of safety that seems to flourish in this organization. However I was surprised by one of the participants, who appeared to be very listless in his demeanour.
This participant, we’ll call him Joe, was a chef at a store in Windsor. It turns out that Joe had worked the previous evening until 10 pm, went home and slept until 3:30 am, when he woke himself, picked up a co-worker and drove the 4-5 hours to arrive in Toronto for the 8:30 am class start time. Even more disturbing was the participant’s intention to drive back to Windsor, after class ended, on the same day! Despite my best efforts to dissuade him, Joe said that he needed to report for work on the following day and there was no way he was going to pay for a hotel room for the night. Although his employer, a franchisee, was very happy to save on cost of an overnight stay, what should the employer’s position have been?
Leaving aside the issue of complying with the rules for work and rest outlined in the Employment Standards Act, we must consider the role of the employer and the issue of due diligence. First of all, was Joe “at work” in the training class? He most certainly was. Joe was there because his employer had asked him to; therefore Joe was considered to be “at work” the moment he left his home at 3:30 am that morning to travel to the class. This fact means that Joe’s employer, the franchisee, would be responsible for any actions or conditions that might arise during the time period in question.
Occupational health and safety issues are often framed by the question “what if?” What if there was an accident? What if the investigation revealed the cause to be an over-tired employee who fell asleep at the wheel? What if the accident resulted in the death of one or more people? An employer who had not thought through these questions to their logical conclusions, and acted appropriately, would be in a very difficult position. A successful due diligence argument would be based on anticipating and controlling the work-related training scenario.
A reasonably diligent employer would have asked the employee about his plans for attending the course. Due diligence would dictate that the employer think about and anticipate the work/rest hours scenario and demand that the employee stay overnight, at the expense of the employer. Neglecting to think about and act on these considerations leaves an employer in a legally, and morally, exposed position. Employers must give consideration to all aspects of the workplace and the work employees are asked to do. In this case, that would include giving consideration to how an employee intended to handle the assignment of attending a training session at a distant location.
Related pages - Due Diligence training.
