Win for pregnant contract workers at Supreme Court of Canada

3 posts / 0 new
Last post
Win for pregnant contract workers at Supreme Court of Canada

The Supreme Court released yesterday a judgment which is a significant win for pregnant contract workers in Quebec.

In Quebec, health and safety legislation provides that pregnant women can refuse to perform work under conditions that present a health or safety danger to themselves or their fetus, and to have a reassignment of work to avoid those risks.  If that reassignment is not possible, they have the right to take Preventive Withdrawal during which they stop working and receive income replacement benefits during their pregnancy.

The appellant in that case, a pregnant supply teacher, had received a certificate from her doctor confirming that she was vulnerable to a parvovirus and that classrooms posed a risk of exposure.

Subsequently, the School Board called the teacher on a number of occasions to offer her work; the teacher replied that she accepted the offer, but was invoking her preventive withdrawal certificate.

The CSST (which administers the preventive withdrawal program) deemed her to be admissible and would be entitled to an income indemnity.

The School Board, however, challenged this decision before an administrative tribunal... and won. Essentially, the tribunal considered that the teacher was not a "worker" under the applicable law because a contract of employment had not been formed. Why is that? Because, according to the tribunal, the teacher had not performed work.

This decision was confirmed by the Superior Court and the Court of Appeal of Quebec (a rather blistering dissent was penned by Dalphond J., however, in the latter case).

The Supreme Court has now overturned all these decisions by the lower courts. Essentially, it said the following: "A refusal to perform unsafe work is not a refusal to fulfill the employment contract, it is the exercise of a legislated right. Workers are thereby protected from having to choose between job security and their health or safety."

One might think it incredible that this case had to reach the Supreme Court in order to attain this seemingly evident conclusion, but there you have it...

BTW: a certain Wagner J. was the one who had penned the Court of Appeal majority opinion that has now been overturned by a unanimous Supreme Court...


Great news, thanks for this Bärlüer!

If you're reading, and in your ample spare time (haha), could you please give us an idea as to how this might apply to other jurisdictions? I don't know how the "retrait préventif" provisions in Québec compare with other labour codes.

If I don't hear from you soon, I'll start looking up the law and giving my own interpretation! [That should do it lol.]



[slow-motion close-up: NOOOOOOOO!!!!] Wink

There is similar protection afforded under the Canada Labour Code (s. 132), although it does not rely on an government agency providing an indemnity (the Quebec model, in which the CSST is responsible for the administration of the program) but rather on the employer continuing to provide wages/benefits to the pregnant worker who has availed herself of the right to cease performing the work she does because of a risk to her or the foetus' health (as under the Quebec regime, the employer may reassign the pregnant worker to other tasks that do not pose a risk).

Manitoba has some protections, but nothing on the level of Quebec and the federal law. Basically, the employer has the duty to inform the pregnant worker of risks that the workplace might foreseeably cause to her/the foetus' health, to "take steps to minimize the exposure of the worker to the condition that creates the risk". The employer can also assign the worker temporarily to alternative work without loss of pay/benefits, if such alternative work is available. In other words, under the Manitoba regulation (Workplace Safety and Health Regulation, s. 2.5), there doesn't seem to me to be a right to continued income in cases where no alternative work is available.

That's it. The only thing other jurisdictions have is protection from X-ray exposition, essentially.