Safety Update

Safety Update: Worker Disobedience that leads to an OHS violation

Can the Employer be held liable?

Creating safe work practices, policies and procedures and ensuring workers are aware and understand the content may not be enough to prove due diligence and ensure compliance.

It is to be expected that workers will not always follow the rules or act in accordance with their training.  Accordingly, the simple fact that a worker does not follow a safety rule may not excuse the company from liability for any resulting OHS violations. However, it has been interpreted by our Canadian Courts (such as the recent R. v. Xstrata Canada Corp., [2010] ONCJ 42 (CanLII), Feb. 10, 2010) that where an employer takes four distinct "reasonable steps" it can prove due diligence on its part and avoid liability for OHS violations resulting from a worker's infraction.

These four steps are discussed below and it is essential that Employers ensure that their organization implements these necessary steps:

1) Establish safety policies and procedures.  These must be in writing and the employer must incorporate appropriate and frequent reviews to ensure they are current.

2) Notify and train workers on the rules. Have appropriate systems in place to communicate and ensure that there is an adequate level of understanding of the policies and procedure.  This may include distribution of documentations, tracking/documenting that employees have reviewed the content and adequate training. Simply being aware of policies and procedures may not be sufficient to prove due diligence on the part of the employer.

3) Monitor workers' compliance with rules. Having implemented adequate communication and training methods and Employer can still not assume workers will always comply. Therefore Employers need to implement a process whereby workers are actively observed and monitored  to ensure that they are actually following and complying with the policies and procedures.

4) Discipline workers for infractions. Finally, the employer has a duty to prevent workers endangering themselves or their co-workers by breaking policies or procedures. Tolerance of safety infractions may be viewed as tacit or explicit acceptance by the employer of such behaviour and this omission is completely inconsistent with that duty of care and destroys any chance for a due diligence defence. Consistency in disciplining workers for violations will support the employer's due diligence defence.

Is your OHS manual current? Has everyone read it? Do you have these steps in place? eCompliance can assist you in implementing and managing such solutions.

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