This blog is written by our law summer student, Ira Marcovitch.
While some are still reeling from the recent heat wave, many are looking for ways to avoid the next string of unbearably hot, humid days. Well, for employers there is a new, legally enforceable way to beat the heat: the so-called ‘mandatory siesta.’ In a labour arbitration decision released last year, the board decided that extreme heat can constitute an ‘act of god’ which would allow employers to force employees home for the day without pay.
The case dates back to a hot day in July 2011 not unlike the ones recently experienced. With the humidex rising above 40 before 10:00 am, management at the Maksteel plant in Mississauga decided to send home the majority of the plant’s workers, paying them for the 2 ½ hours they had worked.
On the workers’ behalf, their union filed a grievance alleging that the employer had failed to pay them the 4 hour minimum stated in their collective bargaining agreement. They argued that the extreme heat was foreseeable and that arrangements should have been made prior to the day beginning or, alternatively, the employer should have allowed those who wished to continue working in the heat to do so.
In its defence, the company relied on the ‘act of god’ provision in the collective bargaining agreement, which allowed it to skirt the 4 hour minimum proviso. Simply put, an ‘act of god’ in the legal sense is, ‘an overwhelming unpreventable event caused exclusively by forces of nature’ such as flooding, hurricanes or earthquakes that prevent some portion of a contract from being performed.
Usually the effect of an act of god, much like those in the biblical sense, is that the parties are discharged from their worldly, contractual obligations. The description that often attaches is that the contract has become ‘frustrated’ or is unable to be fulfilled. In the present, an act of god would have the effect of temporarily frustrating the requirement that workers be paid for a minimum of 4 hours work.
In the end the arbitrator, T.E. Armstrong, sided with Maksteel. He canvassed a number of Canadian authorities that stood for the proposition that extreme weather can constitute an act of god (all things considered, I would guess that extreme cold tops that list), and also cited numerous American decisions that had held that extreme heat could constitute an act of god.
Accordingly, he found that conditions of extreme heat and humidity could constitute an act of god and that no grievance had been done to the workers. However, had the extreme heat been foreseeable in the eyes of the arbitrator, it would not have constituted an act of god. Interestingly enough, he concluded that the weather forecast and the numerous heat alerts released that week did not make the extreme heat foreseeable which begs the question of what constitutes foreseeability of weather. I guess we’ll have to wait at least until the next heatwave to find out, now that extreme heat can now constitute act of god under Ontario law.
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