The Metron conviction was under the federal Criminal Code, while the Swartz conviction was under Ontario’s Occupational Health and Safety Act.
While Bill C-45 of the Criminal Code established a new duty and higher penalties for all workplace parties — including the CEO — OHS statutes in every jurisdiction in Canada also have the potential of putting a CEO or senior executive in jail. Although there seemed to be little interest in the past among regulators to charge CEOs, that appears to be changing.
Across Canada, CEOs are now being targeted for prosecution for safety violations. Public, media and political pressure on OHS regulators to hold CEOs accountable are growing. Social media coverage of workplace incidents, injury and death is having an impact on the exposure of corporations and their CEOs to increased expectations, criticism and blame.
Generally, the role of the chief executive officer is to set, communicate and execute the corporation’s vision and purpose, as prescribed by the board of directors. If a corporation intentionally chooses to make workplace safety a priority, it is the CEO’s responsibility to do the same — as he would every other mandate from the board. CEOs should encourage the board to ensure workplace safety is a top priority of the corporation. Since this should be determined by the board — as required by most OHS laws in Canada — the real question for CEOs then becomes, “How will they set, communicate and ensure execution of the OHS plan of the corporation?”
First, CEOs need to know and identify the goals and policies of the corporation. Sadly, many business leaders are not even aware of the details of their safety policies and programs, and are unable to tell their board whether they are fully compliant with OHS laws in their jurisdiction.
The CEO needs to have people whose full-time assignment is to manage workplace safety and report to the CEO, answer questions by the CEO, and regularly report safety metrics to the CEO. The CEO must be, and be seen to be, the safety leader in the corporation.
This may require an external audit authorized by the chief executive to ensure there is external data and accountability to rely upon in setting safety standards and goals for the organization.
The CEO needs to know what the safety hazards at their workplace are, what the legal requirements are and how legal and safety compliance can be achieved.
Second, it is the responsibility of the CEO to communicate safety to the entire workforce. This is achieved through formal presentations, forums and email communications. Messages can also be conveyed through action, such as touring the workplace, talking to workers and gathering facts first hand on the job. When CEOs make safety budgets a financial priority, they send a message to the workers that workplace safety is of high priority. These and other means of communication will ensure everyone in the organization gets the right message on workplace safety.
Third, the safety management system must be executed. A policy and program is not good if it cannot be executed. The CEO is responsible for ensuring there is a vice-president, director or supervisor directly reporting to the CEO. Many OHS prosecution cases I have defended arose because there were too many layers of management between the CEO and the manager directly aware of and responsible for safety on the ground.
To avoid a breakdown in communication, it is critical for the CEO to have a direct reporting relationship with the OHS manager. This allows for good execution, good results and good accountability for safety by the CEO.
What gets measured gets done, so every CEO needs to measure the execution of safety plans, programs and safety results.
Ultimately, the best CEOs do not worry about going to jail as much as they worry about the safety of their workers. The best CEOs know what the OHS laws are, how to comply and whether they are in full compliance.
The best CEOs put safety at the top of their priority lists and can proudly tell boards and shareholders that no worker had been injured or killed on their watch.
Give this article to your CEO and ask what kind of CEO they want to be remembered as.
Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or email@example.com
, or visit www.ehslaw.ca
for more information.