More than just a good idea or nice-to-have

A look at the potential consequences for failing to provide adequate training
By Liz Bernier
|Canadian HR Reporter|Last Updated: 02/05/2016

Ask any HR professional to enumerate the benefits of providing robust, timely and proactive training and they’ll probably talk your ear off. There’s certainly a business case to be made for investing in training programs, whether that investment is of time, money or both. 


But what’s discussed less often are the potential risks and consequences of failing to provide adequate training — particularly when it comes to occupational health and safety and harassment. 


There are a broad range of negative outcomes that are possible when an employer does not provide proper training, according to David Whitten, founding partner of Whitten & Lublin in Toronto. 


It can be as simple and seemingly innocuous as having an employee or department not perform well because they lack the necessarily skills training and development. 


But when it comes to lapses in safety training or training around workplace policies, that’s where there can be legal consequences that can really come back to bite an employer, says Whitten. 


First of all, failing to train employees on proper procedures, safety training or even ergonomics can lead to a higher number of disability claims, he says — which can become costly for the employer. 


“People are off work because they’ve been injured. And if you’re covered by the Workplace Safety and Insurance Act, which a number of employers in this country are, you’re going to have to deal with the Workplace Safety and Insurance Board when they try to adjudicate these claims,” he says. 


“If you’re not covered by the Workplace Safety and Insurance Act, you might also find that employees are suing you for negligence.”


There is a differentiation there because if an employer is covered by the act, its employees can’t sue for a work-related injury. But employers that aren’t covered could be open to those types of personal injury claims.


There is also the provincial ministry of labour to worry about, says Whitten. 


“They enforce the Occupational Health and Safety Act which requires you to train employees on unsafe scenarios and provide safety training.”


Further to general safety training, there is also required WHMIS training or Workplace Hazardous Materials Information System training, which carries legal consequences if employers don’t provide it properly. 


“When people are dealing with toxic chemicals or any kind of chemical, it’s surprising how innocuous stuff that you wouldn’t even think was a toxic chemical (actually is considered one),” says Whitten. 


For instance, some of the materials that are used in photocopiers are considered hazardous — yet in an office environment, many employers don’t even think to provide hazardous materials training. 


Failing to provide training can potentially cause trouble during a termination, as evidenced in one widely cited case. 


In the 2012 Shakur v. Mitchell Plastics, two workers became involved in a verbal altercation which escalated until one worker slapped the other across the face with an open hand. The worker — who had six years of service, a clean disciplinary record and no history of violence or anger issues — was terminated for cause. 


However, when the employee sued for wrongful dismissal, the judge stated the employer had done nothing to adequately train employees on its workplace violence policies. It did nothing beyond distributing the handbook, and accompanying revisions, to employees and leaving them to read it and interpret it for themselves, said the judge.


Although rarely seen, there is also the potential for personal liability and criminal charges under Bill C-45, also knows as the Westray Bill, which came about in 2004 after 26 miners were killed in a mining disaster in 1992. 


“Now, there’s personal liability for directors and owners under the Occupational Health and Safety Act — if they’re aware of an unsafe work scenario and allow it to continue, they could be criminally charged.”


In fact, a 2015 case in Ontario saw two corporate directors with NewMex Canada, a Brampton, Ont.-based furniture retailer, receive jail time and a $250,000 fine for failing to provide health and safety training. That, among other safety violations, was found to be the cause behind the death of a forklift operator in 2013. 


The two directors were charged with failing to take reasonable care the corporation complied with OHS legislation, and NewMex Canada pleaded guilty to failing to provide information, instruction and supervision to a worker regarding fall protection and working from a height.


Psychological safety

Another issue that’s not always addressed is that of providing proper training around psychological safety and workplace harassment — which has led to a number of high-profile cases recently, says Whitten. 


In 2015, the Canadian Olympic Committee came under fire after receiving significant media attention for a so-called “culture of harassment” within the organization. Former president Marcel Aubut, 68, stepped down after being accused by multiple women of unwanted touching and sexual comments. 


Investigators found there was insufficient training around workplace harassment at the organization and recommended “education, including a mandatory training session for staff and board members on harassment policies and procedures.” 


The organization received a significant amount of negative media attention and — arguably — reputational damage because of the incident. 


Failing to provide training around workplace harassment could also see employees taking stress leave, just like with a physical injury, says Whitten. 


“What’s happened is the Workplace Safety and Insurance Board has begun approving more claims for work-related stress and anxiety. They used to only approve it if somebody got killed (for instance), but now they’ve started to approve stress-related claims for other colleagues harassing you.” 


Even failing to provide training in a manner that’s feasible for employees could result in unintended consequences. In Greyhound Canada Transportation Corp. and Unifor, Local 114 (West), an arbitrator ordered an employer to reinstate an employee who was terminated for failing to attend re-training. The employee — a long-haul motor coach operator who had been on stress leave — was told to attend retraining upon his return to work. 


The employee, who was based in Nanaimo, B.C., would have to report to Vancouver for a component of the training — which he claimed was not feasible due to an earlier medical travel restriction from his doctor. He was terminated for failing to attend the training, but was later reinstated.  


And if employers don’t provide proper training and employees end up injured, employers could get into additional trouble under the human rights code if they don’t accommodate those injuries, says Whitten.  


“When you have injured workers — separate and apart from them suing you or you having workers’ compensation claims — you also have the whole issue of accommodation under the human rights code,” he says. 


“You have to accommodate any impact that has on their performance… So now we’ve got a bit of a snowball effect, because their colleague (is upset) because now they’ve got to do all their work.


“Not providing training can come back to haunt you.”

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