Employer not relieved of duties when supervisor hired
Consider this: An employer spends considerable time and money on a strong health and safety policy and program. It provides workers with health and safety orientation, training, regular training updates and hires highly recommended supervisors. However, when a safety inspector visits the workplace for an unscheduled field visit, it is concluded that a worker is working in an unsafe manner and there has been a violation of the Occupational Health and Safety Act. Both employer and supervisor are charged with failing to ensure “every precaution reasonable in the circumstances for the protection of a worker” was taken.
What, if anything, could the employer have done differently to have protected itself, its supervisor and its worker?
The role of a supervisor
Every employer is required to do what is reasonable to ensure a safe work environment. To satisfy this duty, employers often hire supervisors whose mandate is to monitor and enforce health and safety compliance. However, hiring a supervisor does not relieve an employer of its duty to ensure a safe workplace.
In R. v. Lockyer, the supervisor was responsible for health and safety at his worksite, but was also expected to perform carpentry work. He gave regular morning safety talks and safety equipment inspections, but left workers largely unsupervised the rest of the day. He was confident his workers would follow safety instructions when he was not present, and checked in on them from time to time. An inspector witnessed a worker on scaffolding, without fall protection, working at a height. The supervisor was charged with violating the act. At trial, the court held while the supervisor was not expected to “stand around all day long watching the workers,” more was required than “coincidental, unplanned followup.”
In R. v. Servisair, a recent Alberta decision, a worker failed to use fall protection while de-icing an airplane and fell to his death. The employer had extensive safety policies and training, and provided all of the required safety equipment. Senior management conducted informal audits of workers several times a day and a supervisor, who conducted spot checks, was normally present. On the morning of the accident, the supervisor was called away to cover for a sick worker. At trial, the court found given the workers’ extensive experience and training, it was justifiable for the supervisor to expect them to work safely while he was absent. No liability was found.
What is a reasonable level of supervision?
Reasonable supervision is about consistency, deliberate observation, detection and correction. Supervisors should be present at a workplace or job site often enough to detect hazards or unsafe behaviour, and where hazards are detected, to take steps to rectify them.
In Servisair, management could credibly claim it expected workers to work safely while unsupervised. Extensive training accompanied by frequent, systemic spot checks satisfied the court workers were appropriately supervised. In Lockyer, management essentially had no knowledge of what workers were doing when not supervised and could not demonstrate it had made reasonable efforts to prevent unsafe behaviour.
Practical tips for employers
The proper use of a supervisor in a workplace can be the cornerstone to a strong health and safety program. While the meaning of every precaution reasonable may differ among workplaces, the following best practices will apply to supervisors in most — if not every — workplace:
Training: Every supervisor must be sufficiently and consistently trained to understand and implement the workplace’s health and safety policies and programs
Observation: The mandate of a supervisor should be regular, consistent and systemic observation of the workplace and workers to ensure health and safety compliance. Supervisors should therefore not be made so busy with other workplace responsibilities that they are unable to appropriately “supervise” workers, nor should supervision be ad hoc or sporadic
Record keeping: Supervisors should keep detailed notes of their observations and any remedial or follow-up steps taken with workers to ensure compliance
Communication: Supervisors should regularly and consistently communicate with workers, other supervisors and senior managers to identify issues and ensure prompt safety compliance.
Enforcement: Supervisors, together with employers, must consistently and transparently enforce all health and safety requirements.
Zero tolerance: While it may seem harsh, supervisors and employers should have a “zero tolerance” policy for health and safety violations. If a worker violates the act or the employer’s policy and procedures, immediate and progressive discipline should be considered up to and including termination depending on the severity and consistency of the infraction.
Curtis Armstrong and Carissa Tanzola are lawyers with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. Curtis and Carissa can be reached at (416) 603-0700, (416) 420-0738 or by visiting www.sherrardkuzz.com.
