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Sep 14, 2010

Workplace health and safety: Shared responsibility and liability

If unsafe conditions are found to have been caused by onsite negligence rather than improper safety procedures, how much liability should an employer have?
    

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

There are many industries where workplaces can be dangerous due to the nature of the business. Accidents in the workplace that cause injury or even death can, and unfortunately do, happen.

Every jurisdiction has occupational health and safety legislation that employers are required to follow to reduce the risk of these types of accidents. If something does happen that’s found to be the result of a failure to follow health and safety regulations, employers usually face hefty fines. But how much responsibility should employers have if something happens because of an employee’s actions?

When employees don’t follow proper safety protocols, it can either be because they weren’t trained properly nor given proper equipment, or they deliberately chose to ignore proper procedure. If the former is the case, then the employer must assume liability for a situation it created. But if it’s the latter, how much liability should the employer have? To what extent can it control the employee?

In May, two Ontario construction companies were fined $60,000 each after a 2008 incident where a worker fell through a roof opening when a plywood safety covering was removed. Two supervisors were also fined $3,000 each for failing to ensure the worker was protected from falling.

Given the opening was originally covered, workers were likely aware of the danger and the need for the safety cover. Assuming the companies trained their workers on the necessity of this practice, shouldn’t they have been able to trust their supervisors to ensure the covering remained in place? Since the supervisors were found to be liable for the incident on their watch, what could the companies themselves have done to avoid the accident if they thought the supervisors were looking after things?

Another Ontario construction company couldn’t have done anything itself to avoid serious injury to a worker in a case decided late last year. Aecon Utilities had been charged with health and safety violations after a worker was hurt using a hammer and wrench to dislodge a steel rod from a large drill bit. His coat got caught tangled and he was spun around the drill.

The court found Aecon had properly trained the employee on how to operate the drill and safety procedures, as well as given specific warnings to avoid using wrenches on moving machinery and to keep loose clothing away from it. However, the employee simply disregarded all that and the court couldn’t find the employer responsible for the employee’s independent actions that led to his injuries.

An Alberta court took the same view after a gas well worker died from inhaling gases after disregarding instructions not to do anything to repair a pressure vessel until proper equipment was obtained. The worker had been properly trained in safety procedures, but didn’t follow the instructions. The employer, Lonkar Well Testing, wasn’t responsible for the employee’s actions.

So, if an employer can be found to be not liable for an employee’s independent actions that cause an accident, should it be liable for supervisor’s decisions on the worksite that are contrary to training and policy? If unsafe conditions are found to have been caused by onsite negligence rather than improper safety procedures, how much liability should an employer have?

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

    
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