I have read these two articles and many other articles by Gowling Lafleur Henderson LLP, and by other lawyers on due diligence. I am not a lawyer and I am sure we don’t have all of the information the judges had in these rulings. It has always been my view that due diligence can only be used as a defence if an employer or prime contractor can prove the existence of an effective safety management system.
For a safety management system to be considered effective, all (not just some) of the following must be true:
• The hazards associated with tasks must be identified in the presence of and with input from the people most affected by the hazards. Workers must understand the task, the associated hazards and the potential consequences if the hazard causes / results in a loss.
• Appropriate controls must be identified and implemented (again, with the involvement and input of the workers affected). In the Dofasco case, (I believe) it may have been assumed that a work procedure was an effective alternate for a barrier or guard, perhaps without a review of whether this control provides workers with an equivalent level of safety. In the established hierarchy of controls, this administrative control (the work procedure) is not considered to be as effective as an engineered control (the guard).
• Employers have a responsibility not only to educate workers on the hazards and controls, but also educate workers on the potential consequences if controls are not used. Workers must understand and have bought into the appropriate hazard control, based on identified risk factors. Again, not having all of the facts, it occurs to me that in both the Dofasco and Lonkar cases, the workers likely did not understand the potential consequences of their actions. It is difficult to ensure and to prove that workers understood the hazards, controls and potential consequences of their actions if controls are not followed; but this is what I understand to be an important part of proving due diligence.
• As the appeal court judge stated in the Dofasco case: “Employees do not deliberately injure themselves.” So, we need to ask ourselves what would motivate a worker to bypass or not use a specified hazard control. Often, their motivation comes from the people assigned to ensure their safety (improve productivity, keep costs down, get the job done quickly, etc.). Employers must monitor, mentor and motivate workers. Employers must continuously promote cost and production efficiencies, but on an equal level, promote safe production. Employers cannot just monitor the use of hazard controls and compliance to rules / procedures, with the intent of progressively disciplining individuals who do not comply. Employers must educate, mentor and continuously motivate employees to use the controls. This often involves engaging workers and determining if they understand the hazards, controls and consequences. This is often not done by supervisors because they do not know how to do this effectively.
• Employers must determine if the hazard controls are working and adjust accordingly if not. This is a step that is often missed in an effective safety management system. Employers must ask workers if they believe the controls are effective and allow the task to be completed in a timely, productive and safe manner. This relates back to the first point of engaging and involving workers in hazard identification and control. In the Dofasco case, the appeal court judge alluded to the fact that the control implemented by the company was not adequate and did not work at the time the worker was injured. In loss investigations, I often find that an unsafe behaviour such as not following procedures is not only commonplace, but is also known to supervision and accepted.
I believe there are other elements required to prove due diligence, but the above noted are often missed when articles related to this subject are written. I also understand that what I have stated above is not new or original. These key elements of due diligence have been reinforced many times in my 27 years as a safety practitioner. My concern is that we are not consistently fulfilling all of these responsibilities and therefore not in a position to prove due diligence in many cases. If those who are charged with enforcing present-day OHS laws actually hold employers accountable for the above, we will see many more similar rulings.
PS: Enjoy reading COS and have for many years.
Mark Halliwell, CRSP
Calgary
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