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Temporary assignment of Work: employer’s privilege or duty?

Me Rhéaume Perreault, CIRC, Adm. A. and Me Stéphanie Raymond, Fasken Martineau DuMoulin

Much has been written these past few years about the temporary assignment of work and one can legitimately ask oneself: does the employer have a legal duty to provide this type of assignment to an employee who has suffered a workplace accident or occupational disease? This article will attempt to answer this question.

From the outset, let us recall that section 179 of An Act Respecting Industrial Accidents and Occupational Diseases, in light of its wording (“may temporarily assign”), clearly provides that the temporary assignment of a worker is a privilege of the employer. However, each set of circumstances must be analysed separately since the case law that has developed around an issue sometimes alters its scope.

The particular circumstances of the work can have an impact on the employer’s ability to temporarily assign the work in question. In this respect, the situation is different if the parties are in an individual or collective work environment.

In a collective work environment, the collective agreement may have the effect of imposing specific obligations with respect to the temporary assignment of a worker1. Since this agreement results from negotiations between the parties, the latter are required to abide by its terms, failing which they will be compelled to do so by an arbitration award. Under these circumstances, the temporary assignment of a worker may, therefore, become a duty in spite of the wording of section 179 of An Act Respecting Industrial Accidents and Occupational Diseases.

Furthermore, the Charter of Human Rights and Freedoms, which applies in a non-unionized as well as in an unionized setting, in section 10 thereof, imposes a duty of accommodation with respect to a person who has suffered a handicap, which duty lasts until it becomes an undue hardship for the employer. As a result, some have unsuccessfully argued that an employer had a duty to assign light work to a worker. In 2016, it was determined that an employee who had been injured and was away from work – hence, who had suffered a handicap – was not discriminated against where the employer did not provide a possibility of temporary assignment since his employment status had not changed and there was no evidence showing that his circumstances were any different from those of other employees who were unable to perform their duties2. Where discrimination cannot be established, the arbitrator does not have a duty to analyse the employer’s duty of accommodation since the latter is not under such a duty. The arbitrator, in that decision, reiterated that the employer may proceed to make a temporary assignment, but is not legally bound to do so. The arbitrator stated as follows:

“ [70] For now, in light of the fact that it is the Employer’s prerogative whether or not to assign a worker to light duties in a situation where the complainant’s injury has not consolidated, where no permanent or progressive return to work is prescribed and where the complainant is receiving salary insurance benefits, it is premature to speak of a duty to accommodate.

[71] Under these circumstances, in the absence of evidence of discrimination based on handicap, there is no requirement for me to consider the Employer’s duty of accommodation.”

While An Act Respecting Industrial Accidents and Occupational Diseases clearly states that the employer is under no obligation to temporarily assign a worker, this may be altered by collective agreements binding on the parties as well as by the Charter of Human Rights and Freedoms.

To summarize, a temporary assignment is at the discretion of the employer, subject, of course, to the physician’s agreement. It is important, however, to exercise caution in drafting policies or clauses in a collective agreement so as to not interfere with this prerogative.

1 Syndicat des métallurgistes Unis d’Amérique, local 206G et Owens-Illinois Canada Corp. (O-I), D.T.E. 2007T-334; Travailleurs et travailleuses unis de l’alimentation et du commerce (TUAC), section locale 500 et Super C - Repentigny, D.T.E. 2016T-557.

2 Travailleurs et travailleuses unis de l’alimentation et du commerce (TUAC), section locale 500 et Super C - Repentigny, D.T.E. 2016T-557

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