Worker negligence in the event of an accident at work

The Act respecting industrial accidents and occupational diseases (AIAOD) establishes a ” no fault ” compensation plan, where workers injured on the job are automatically compensated without having to prove the fault of the employer or the worker.
The accident must be an unforeseen and sudden work-related event to benefit from this scheme.
The injured worker is then the victim of an employment injury.
Thus, a worker can be compensated by the CNESST even if the accident is his or her own fault or without having to prove the liability of the employer or a colleague.

Exception to compensation

There is, however, an exception to the compensation system: if an injury or illness is the result solely of the worker’s gross negligence and wilful misconduct, it will not be recognized as an employment injury, except in the case of death or serious permanent injury.
In these cases, the employer can request that the claim be denied.
This exception is found in section 27 of the AIAOD, which reads as follows:

An injury or illness that occurs solely because of the gross and wilful negligence of the worker who suffers it is not an employment injury, unless it results in the death of the worker or causes a serious permanent impairment of the worker’s physical or psychological integrity.

Thus, in order to be able to apply this article, the following 3 criteria must be met:

• The worker was grossly and willfully negligent;
• This gross and voluntary negligence is the only cause of the injury;
• The injury did not result in the death of the worker or cause serious permanent impairment of the worker’s integrity.

The concept of “gross and wilful negligence”

For conduct to be characterized as negligent under section 27, it must be wilful, reckless and show excessive disregard for the worker’s personal safety.
The concept of “gross and wilful negligence”, defined by case law and not by law, therefore implies a wilful act with extreme recklessness or recklessness with regard to the safety of the worker, going beyond mere recklessness or error of judgment (for example, in the context of a reflex resulting in a situation that leads to an injury).

Examples where the Tribunal recognizes gross and wilful negligence by the worker

A review of the case law reveals that section 27 is applied sparingly in favour of the employer.
Examples where the Tribunal recognizes gross and wilful negligence on the part of the worker include:

1. A worker is injured while working in a position with functional limitations that would normally prevent him from doing so.
   In a field like construction, these physical limitations significantly increase the risk of serious injury.
2. A worker in a poultry processing plant injures himself while trying to unlock a piece of meat in a machine with his hand.
   Although he received all the necessary training and was required to comply with the safety rules established by the employer, he did not do so.
3. A worker neglected to follow the lockout procedure and voluntarily decided to remove a piece stuck in a machine without stopping it, using a piece of wood to bypass the safety system.
   She had received several reminders about safety rules prior to the accident.
   It is important to note, however, that failure to comply with a safety rule does not automatically constitute gross and wilful negligence.
4. A high school teacher is injured during an outdoor outing with teenage students, deliberately jumping off a mound higher than him during a snowshoe walk.
   A video shows that he voluntarily prepares to jump, encouraged by the students, without being pushed or tripped over.
5. In a moment of intense anger after a discussion with his foreman about a forklift, the worker violently and carelessly knocked a roll of paper, resulting in a fractured hand.
   This act constitutes gross negligence, as he acted violently and without regard for his own safety.
   Moreover, it was a voluntary act of letting off steam.
6. The worker deliberately returned to his work as a tiler despite his history of allergic dermatitis in both hands, warned of the risks associated with contact with chromate.
   Her allergic dermatitis therefore reappeared following the resumption of this job.
   This choice constitutes gross and wilful negligence, as he knowingly ignored his functional limitations and exposed them to a known danger.
7. In a state of intoxication, a worker left his workplace in a car to eat and hit a cement pole.
   This driving is a blatant example of gross and wilful negligence, as he deliberately got behind the wheel with awareness of his condition.
8. A worker chooses to deliberately jump from a truck bed, six feet high, despite the availability of a ladder.

These examples show that, to ensure the safety of workers, the employer must provide training on hiring and regularly remind them of the safety rules.
It is essential for the employer to document these trainings and reminders to preserve evidence in the event of a dispute, especially when it comes to physically demanding jobs where it is legitimate for the employer to check the physical condition of the candidates, including functional limitations.

Examples where the Tribunal does not recognize gross and wilful negligence by the worker

As for situations where the worker’s gross and wilful negligence was not found by the Tribunal, here are a few examples:

1. While driving a patrol car, the worker dropped his cigarette, unfastened his seat belt without stopping the vehicle, and lost control, hitting a pole.
   Although he admits negligence in failing to stop the vehicle, the injury cannot be attributed solely to his gross and wilful negligence.
2. Failing to wear a seat belt while driving at 60 km/h in a 50 km/h zone is not sufficient to deprive the worker of his or her right to compensation, as this behaviour does not constitute an act of recklessness or extreme disregard for his or her safety.
3. During an inmate search, a correctional officer used offensive terms (“child”) and was then attacked by the inmate.
   Although the words used by the worker are clearly gross negligence, their context indicates that it was more of a reflex than a voluntary act.
4. A worker chooses to climb a stepladder on the wrong side, using the “studs” instead of the steps provided for this purpose.
5. Any gesture taken by reflex by a worker, while facing an emergency situation.

So, if your employer or the CNESST holds you responsible for your accident, it is important to know that the criteria for excluding you from the compensation plan are strict.
In conclusion, when a worker does not follow an occupational health and safety policy or procedure, it can result in disciplinary action, but this does not automatically mean that their lack of care amounts to gross and wilful neglect.
Thus, the resulting costs of the accident would then be charged to the employer.
If you are faced with an unfavourable decision from the CNESST, do not hesitate to call on our team specializing in occupational health and safety to contest this decision. Contact us today.