Putting the boss behind bars?

Jail time has seldom been used when it comes to punishing negligent employers. But there’s a push on to change that
By Todd Humber
|Canadian HR Reporter|Last Updated: 01/25/2016

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lair Hallett has become a lightning rod for anger when it comes to occupational health and safety. Not because of the first thing he did after his 14-year-old nephew fell five storeys to his death, landing just one metre from where Hallett was standing. The first thing Hallett did was call 911.

It’s his second action that shocked many and led to increased calls for stiffer fines, and jail time, for employers. While talking to the 911 operator, the dispatch system also caught him telling a foreman at the work site, “Workers comp will be here right away, so you get that railing up right now.”

It was just the second day on the job for Shane Stecyk, Hallet’s nephew, who took a summer job with his uncle’s construction company working on a condominium project in Edmonton’s posh Old Strathcona neighbourhood. He was vacuuming up puddles of water on the roof at the time of the accident, falling through a hole that should have had a railing around it.

Kevin Flaherty, executive director of the Alberta Workers’ Health Centre, a non-profit group based in Edmonton, said this was a case that should have led to jail time for the employer, which is possible under Alberta law. Not just because of the circumstances surrounding Stecyk’s death, but because of a history of documented health and safety problems at Hallet’s construction company, Hy-Mark Builders. In the past, health and safety inspectors had slapped Hy-Mark with 10 stop-work orders for safety violations, threatened prosecution and offered to help with safety training.

“If there was ever a case that would elicit a jail sentence, this would be the one you think would certainly,” said Flaherty. “This wasn’t just like a one-shot deal where someone has forgotten something or didn’t follow procedure. This was a very clear-cut case where calculated risks were taken over the years.”

But when the decision was handed down there was a fine, but no jail time, for Hallet. The court fined Hallett $10,000 personally and his construction company $110,000. With Alberta’s victim surcharge, the total came to $138,000.

“That worked out to about $2,000 per unit of the condo complex he was building,” said Flaherty. “We were hopeful he would go to jail, but not surprised.”

The case for jail time

While Hallett wasn’t sent to jail, legislation in Alberta and other jurisdictions across the country allows for it. In February, a Toronto roofing contractor was sent to jail for 90 days for two violations of Ontario’s Occupational Health and Safety Act that resulted in the death of a worker.

But Paul Kells, whose 19-year-old son Sean was killed on the job at a plant in Mississauga, Ont. in 1994, said jail time is not used enough as a deterrent for employers.

“We ought to be careful in handing out jail sentences,” said Kells, who founded the Canadian Safe Communities Foundation in the wake of his son’s death. “But we’ve been far too careful about it. The jail provision is rarely applied and people are too prone to say it was just an accident.”

Who should serve the jail time is another point many are grappling with — should it be the supervisor in charge or someone higher up the corporate food chain?

Vern Edwards, occupational health and safety director for the Ontario Federation of Labour (OFL), said it’s easy to point a finger at the supervisor on the front line.

“But, in many cases, the supervisor doesn’t have any more authority than the worker does,” said Edwards. “If the supervisors aren’t being properly trained by senior management and they’re not competent because they’re not aware of their obligations under the act, then the focus needs to be higher up.”

Edwards said CEOs and boards of directors have a responsibility to ensure proper policies and procedures are in place. While he admits having directors micromanage companies is not desirable, when it comes to health and safety they have a responsibility to ensure policies are implemented and don’t just sit on the shelf as a form of paper protection for the organization.

At the Alberta Workers’ Health Centre, Flaherty has been grappling with what impact jail time would have on getting employers to comply with health and safety regulations. In general, he’s against jail because he doesn’t think it acts as a deterrent. But if you look at someone like Hallet, a successful businessman who walks around town with his head held high, the concept of going to jail is totally foreign to him, he said.

“If we had to send a couple of people like that to jail, even for a little while, I think it sends a big message because it’s such a violation of their own culture,” he said. “If you’re a petty criminal, you know you’re probably going to get caught eventually. But when you’re a corporate executive or a business owner, it’s a lot harder to look your colleagues in the eye when you’ve been sent to the big house.”

Former Toronto Maple Leafs owner Harold Ballard and hockey czar Allan Eagleson provide perfect examples of how people’s reputations can be changed dramatically when they’re sent to jail, he said.

“Guys like that they go from being top of the heap to just scum,” said Flaherty. “I don’t think it would take long for people who take pride in their place in the community to go, ‘Oops. I’ve got to be more careful with what my message is to my employees where we place health and safety.’”

Kells agreed with Flaherty. He draws comparison to the early 1980s when the government cracked down hard on companies that were breaking environmental laws and the directors of corporations who had wantonly done something wrong.

“That sent a chill right through the corporate community,” said Kells. “Directors really began to pay attention to the legal consequences to them personally of not following through.”

Increasing fines

Since jail time is so rarely used for workplace deaths, fines are the norm when it comes to addressing workplace health and safety problems. Kells said things have improved significantly — meaning the fines are getting bigger — across the country in recent years.

“It was almost like a Third-World country 15 years ago just about everywhere in Canada,” said Kells. “It’s been an encouraging upward trend that has been happening, particularly in Ontario. But we’ve been too soft on this in many of the provinces and fines haven’t been used as an adequate deterrent.”

Parts of the country, particularly the Atlantic provinces, are lagging behind and fines need to be bumped up to reflect the true cost of workplace injuries and fatalities, he said. It’s no longer satisfactory that a young woman loses her leg in a pulp and paper mill in New Brunswick, is handicapped and disabled for the rest of her life, and the fine is relatively small.

“A fine of $10,000 or $15,000 doesn’t come anywhere close to meeting the cost to society that the employer created, never mind the moral argument,” said Kells.

Enforcement

The problem with fines, though, is that they come after the fact — too late to help the employee who was killed or injured, said the OFL’s Edwards. More inspectors need to be hired because the possibility of getting caught is a big part of the deterrent.

“We’ve got more fish and game inspectors (in Ontario) than we do people who are supposed to be protecting life and limb of workers,” said Edwards.

Kells said the key is raising the profile of health and safety in the public’s eye, and proposes that governments do something similar to the drinking and driving blitzes done around the holiday season.

“You have to make people aware of what the standards are and the consequences are,” said Kells. “We have not done a good job of that on the awareness side.”

Employers, employer associations, unions and the public at large need to step up, he said.

“They need to step in and say, ‘Here’s what we have, and here’s what will happen, and by God get with it,’” he said. “I dare say that within a lot of companies, the people inside have no idea what the consequences could be if they mess up.”

The ghettoization of the workplace

The fact that workplace deaths are treated different than deaths that happen in the general public is frustrating to Kells. He said there has been a “ghettoization” of the workplace ever since health and safety regulations were introduced more than 100 years ago.

“What it has done is provided everybody with an excuse to say, ‘Oh, well, that’s taken care of,’” said Kells. “We’ve set occupational injury off in a whole different sphere.”

He said the death of his son Sean, who succumbed to injuries after a chemical he was pouring into a barrel ignited, would have been treated far differently if it had happened outside the workplace. If Sean had been walking across the street and he had been hit by a car going 100 km/h in a 50 km/h zone, the driver would have been jailed, he said.

“But somebody who displayed the same sort of reckless disregard in the workplace, it’s almost certain they’re just going to get a fine,” said Kells. “It’s really bizarre how we’ve applied a different standard to the value of human life outside the workplace and inside the workplace.”

Edwards said the OFL has argued for a long time that employees are treated like second-class citizens once they set foot inside the workplace.

“They go out on the sidewalk, and they’re a member of the public,” he said. “They go into the workplace, and suddenly different rules apply.”

Flaherty said people don’t start a company with the idea that they want to kill somebody. But he knows of story after story where people talk about health and safety, but when it comes to actually doing it, the employers tell or intimidate staff to put the rules aside to get the job done.

“They put safe practices aside or they design a process that will save money,” said Flaherty. “Because they don’t want to implement what is most safe, they only want to implement what is more safe.”

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