Sexual assault prompts OHS charge

Employee working alone when attacked
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 12/12/2008

The perils of working alone are in the spotlight again after Alberta Employment and Immigration charged Garda Security with failing to ensure an employee’s safety under Occupational Health and Safety (OHS) regulations.

“It is the first time there’s been a charge in a sexual assault case for failing to ensure the health and safety of a worker,” said Chris Chodan, a spokesperson for the Ministry. “Typically for an assault or sexual assault, it’s a criminal act as well so usually it’s dealt with by that avenue, but in this case the officers and prosecutors both agreed there was failure on the part of the employer as well.”

The charge comes two years after a female security guard working for Garda was attacked while she was working alone at a Calgary construction site. Her assailant was caught and convicted of the crime and sentenced to eight years in prison.

In this case, it appears the government is prosecuting the case using the broad provisions in the OHS code that don’t deal specifically with the issue of working alone, said Gil McGowan, president of the Edmonton-based Alberta Federation of Labour (AFL).

“The fact that the government has decided to prosecute this company is an indication that at least someone in government recognizes there’s a problem,” he said. “On the other hand, this is a government that has dragged its feet for years and ignored evidence whenever it was presented when it comes to the importance of beefing up its rules on working alone.

“I’m afraid this case, even if it’s successfully prosecuted, will be an isolated case and not an indication of a new direction in terms of either policy or regulation. No one in Alberta has ever been fined for any breaches of the working-alone regulations.”

Since the regulation was introduced in 2000 (prompted by the death of a Subway employee), the AFL has voiced its dissatisfaction with the adequacy of the provisions, suggesting there should be some form of a law requiring at least two people on shift in high-risk situations.

“We’ve been dealing with the issue for the better part of a decade but we’ve never suggested that blanket prohibitions on working alone be imposed on all sectors of the economy and all industries,” said McGowan. “All we’re saying is in those industries where we know there’s a problem, appropriate rules need to be put in place, which could include bans on working alone.”

What the law requires

According to Alberta’s Occupational Health and Safety Code, working alone is a hazard and, as a precaution, employers must conduct a hazard assessment, implement safety measures to reduce risks, ensure workers are trained and educated on job safety and ensure workers have an effective way of communicating with other employees. And if communication equipment is not feasible, the employer or another worker must ensure there is contact with the worker “at intervals of time appropriate to the nature of the hazards associated with the worker’s work.”

The assessment must be done in writing and, if possible, in consultation with employees, who also receive training. And employees have an obligation to refuse work that’s inherently unsafe.

“They’re not only allowed but required to refuse to do it if it’s unsafe work. It’s an actual obligation under the act,” said Chodan.

But the regulation does not spell out what adequate training should look like, said McGowan, and the two-way communication could mean a phone at the back of the store, far from a front-counter worker.

“If the regulations are going to be worth anything, they have to be more explicit,” he said.

In addition, this approach relies on employers to regulate and police themselves, he said. For example, there is no mention of the penalty for not conducting a risk assessment or mechanism in place to ensure they’ve done it. And there is no definition of what the assessment should look like, so it could be as much as a conversation between two managers.

But Chodan said it’s not self-imposed, it’s compulsory.

“We do 14,000 inspections a year, had $4.6 million of fines from OHS so far this year and 9,000 orders written per year, so it’s definitely not self-policing,” he said.

Is two better than one?

As to a ban on working alone, the Alberta government has stated having two employees may not always be practical or effective in protecting employees and employers should have flexibility in determining how to best protect workers. No other provinces prohibit working alone and “studies we have show that doesn’t mean you’re necessarily going to be safe either,” said Chodan. “It’s something to consider but will not necessarily make your workers safer.”

He cites a 2003 study by the Association for Convenience and Petroleum Retailing in Alexandra, Va., which found “two or more clerks can actually pose more risks in some situations because employees feel more emboldened to try to overcome an assailant or resist a robber” and the key deterrents to criminals are alert employees, low amounts of cash in the register and good visibility in the store.

But suggesting people might be safer working alone “is patently ridiculous” and “flies in the face of common sense,” said McGowan.

The government has failed to commission its own evidence, he said, as the British Columbia government did recently when considering working-alone rules (prompted by an outcry over a gas attendant’s death) and found exactly the opposite results.

“There’s a difference between an attack escalating and an attack happening. How many attacks were discouraged by having more than one clerk on duty? We have no idea,” said McGowan.

And the AFL’s concerns about working alone go beyond violence and assaults, he said, as there are other safety issues, such as a lone worker falling off a ladder, with no one to provide proper medical attention.

“It’s not always about someone pointing a gun at your head,” he said.