By Norm Keith
In the first case of its kind in Canada, two workers have been prosecuted for using their cellphones while on forklifts at work. This case demonstrates when the Ministry of Labour (MOL) will prosecute workers under Ontario’s Occupational Health and Safety Act (OHSA) and it shows the ministry’s expectations on employers to enforce zero tolerance policies with respect to cellphone use in potentially dangerous workplaces.
The two workers were employees of Coca Cola and worked at its large production and distribution centre in Brampton, Ont. The case arose when a colleague of the two workers saw them sitting on their forklifts in a stationary position, holding and looking at their phones. The colleague complained to a supervisor and senior management who tried to resolve the safety concerns.
The co-worker felt the matter was not taken seriously, so he escalated his concerns to a formal work refusal under section 43 of the OHSA. Management attempted to resolve the work refusal but was unsuccessful. As required by the OHSA, the employer contacted the Ministry of Labour, who investigated the work refusal and escalated the matter for enforcement.
As a result, the ministry inspector charged the two workers with the offence of contravening section 28(2)(b) of the OHSA, which states no worker shall “use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker.”
Evidence at trial confirmed that neither accused was actually operating the forklift at the time that they were observed by the colleague. However, they were on duty and in contravention of the employer’s no cellphone use policy at work. One was on the stopped forklift and the other was standing beside the forklift. However, both were on their cellphones.
A detailed review of the evidence was then followed by a comprehensive review of the OHSA and companion provisions of the Highway Traffic Act. The justice of the peace held that the prosecution had proved a contravention of the provision with which both workers were charged. He held that there was no need for the workers to be actually on the forklift and moving for it to constitute a contravention of section 28(2)(b).
The court went on to consider the availability of the due diligence defence. The court held that in view of the company’s zero-tolerance policy for the use of cellphones in the distribution warehouse centre and the inherent dangers associated with a forklift in the warehouse, the defendants were unable to prove the due diligence defence. Although the defence was legally available, it was not supported by the evidence.
As part of that analysis, the court said the employer had made it clear that cellphone use could potentially endanger workers at the workplace. The court said cellphone use, when in the “care and control” of a forklift, would pose a danger even if the forklift is stationary and turned off, and even if the worker is not sitting on it. In this case, the worker is still responsible for the vehicle because it has not been stopped in a safe zone “that would not obstruct or interfere with the movement of other forklifts or people in the warehouse.”
A similar standard has been imposed by the courts for cellphone use prohibition in motor vehicles at red lights and stop signs.
The court said even stopping a forklift in the warehouse to use a cellphone poses risks to other workers “since the driver of the stopped forklift would be subjected to the same distraction of not being cognizant of what is occurring around them while using a cellphone.”
In the end, the court rejected the due diligence defence and the two individuals were convicted.
Lessons for employers
There are at least three important lessons to be learned from this case:
• If there are potential hazards in a workplace, the use of cellphones on a forklift may be found to be a regulatory, strict liability offence.
• Co-workers have a right to refuse unsafe work when other workers use cellphones contrary to policy and employers need to investigate any such complaints.
• The modern phenomena of cellphones and other mobile digital devices is a real and present danger to workers in a multitude of workplaces.
Even though the use of regulatory, strict liability charges against workers may not be the best way to enforce an employer’s policy, that regulatory enforcement mechanism is now being used. Employers need to recognize the real danger that cellphones pose for their workplace. This case illustrates the seriousness with which the safety regulator has viewed cellphone infractions by workers.
There is also a cautionary tale for employers: Even if they have an effective policy, an unwillingness by the employer to enforce their own policy may result in supervisory and employer charges.
Cellphones can and should be banned from dangerous workplaces while workers are engaged in work that is potentially hazardous to themselves or other workers. Distracted workers are as a bad and as dangerous as distracted drivers on the public highways. Hopefully this case will reinforce the need for employers, management, supervisors and workers to respect and follow “no cellphone” policies in workplaces across Canada.
This article originally appeared in the December 2018/January 2019 issue of COS.
Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or firstname.lastname@example.org
, or visit www.ehslaw.ca
for more information.