On Saturday September 21, al-Shabaab, a Somali militant group affiliated with al-Qaeda, stormed and sieged the Westgate Mall in Nairobi, Kenya. The Westgate Mall is an upscale shopping complex known to be patronized by tourists and expatriates.[i] In the attack, more than 60 individuals were killed and approximately 150 persons were injured.[ii] Many non-Kenyans are among the dead, including two Canadians: Annemarie Desloges, a diplomat with the Foreign Service; and Naguib Damji, a Vancouver businessman.[iii] Al-Shabaab has stated that the attack was retribution for Kenya’s incursion into Somalia in 2011. It is further reported that the raid was intended to target non-Muslims.[iv]
The Westgate Mall tragedy gives Canadian employers cause to ponder their legal obligations to Canadian citizens sent to work abroad, and particularly, to countries that are vulnerable to traumatic events like terrorist attacks, civil unrest, natural disasters and disease. As discussed in our April 2, 2013 blog, “Far from Home, Not from Risk – OHS Laws and Canadian Workers Abroad”, Canadian occupational health and safety and workers’ compensation legislation may extend to Canadian citizens who work for Canadian corporations in foreign jurisdictions.
To reduce the likelihood that Canadians working abroad will be seriously injured or harmed in the course of their employment and to minimize any resultant liability under domestic health and safety statutes, we recommend that Canadian employers take reasonable steps to protect Canadian citizens who work abroad. In the normal course, if the Crown proves in an occupational health and safety trial that an employer violated an occupational health and safety statute, then the employer may successfully defend itself by showing that it took all precautions reasonable in the circumstances to keep its worker(s) safe. This is known as a “due diligence defence”. This same defence should apply with equal measure to an allegation that a Canadian company violated a domestic occupational health and safety statute with respect to a Canadian citizen working abroad. More significantly, by being duly diligent and enacting a system of reasonable safety precautions for Canadian employees who work out-of-country, the likelihood that harm will befall such persons should be significantly reduced.
What constitutes due diligence is necessarily contextual and will vary with the facts of each case. There are, however, some standard safety measures Canadian employers may wish to consider when contemplating the possibility of sending a Canadian citizen to work abroad:
- Carry out a risk assessment of the proposed foreign work;
- Be honest and upfront with the worker about the potential risks and hazards of the out-of-country employment and avoid putting pressure on the worker to accept the assignment;
- Develop clear polices that govern the foreign work;
- Develop and maintain a crisis management plan;
- Train out-of-country workers on political, security and travel risks, local laws of importance, and emergency procedures;
- Consider acquiring specialized global travel/medical/emergency insurance and/or hiring third parties for expert medical and security assistance;
- Consider the use of a travel locator/database system;
- Arrange for employee travel and have contingency plans in place in case of emergencies;
- Monitor international warnings and proactively communicate changes in risk levels or hazards to out-of-country staff (e.g., Government of Canada Travel Advice and Advisories); and
- Provide out-of-country workers with contact information for 24-hour advice and assistance in case of a variety of emergencies.
[i] “Kenya mall attack: Most hostages freed, military says”. CBC News, online:
<<http://www.cbc.ca/news/world/kenya-mall-attack-most-hostages-freed-military-says-1.1863653>>. Posted: September 22, 2013. Accessed: September 24, 2013.
[ii] “Kenya mall attack militants defy claims it’s over”. CBC News, online: <<http://www.cbc.ca/news/world/kenya-mall-attack-militants-defy-claims-it-s-over-1.1865907>>. Posted: September 24, 2013. Accessed: September 24, 2013.
[iii] Ibid.; Supra, note 1.
[iv] “Kenya mall attack: Ottawa victim from family of diplomats”. CBC News, online:
<<http://www.cbc.ca/news/canada/ottawa/kenya-mall-attack-ottawa-victim-from-family-of-diplomats-1.1863717>>. Posted: September 22, 2013. Accessed: September 24, 2013.