By Cheryl A. Edwards
In a unique prosecution arising in Alberta, Garda Canada Security Corp. pled guilty and was convicted in February of 2011. The company was fined over $90,000 in July 2011 on a charge of failing to protect a female worker who was attacked while working alone at an isolated worksite.
The charge was commenced under the general provisions of the Alberta Occupational Health and Safety Act requiring employers to take measures as far as reasonably practicable to protect the safety of workers.
In the Garda case, a female security guard performing overnight security duties at a construction project (a new retail store under construction) was viciously sexually assaulted by an intruder who entered the site in the middle of the night where she was working alone. The assault resulted in a criminal conviction against the individual who accessed the site. Facts read to the court indicated that the security guard was a new worker, left to guard an open construction site overnight. She had a telephone to contact Garda dispatch. When she called dispatch to report the intruder she received a recorded message. Mobile Garda patrol units inspected the site from time to time, but no one came to her assistance until the police arrived.
On February 22, 2011, Garda entered a guilty plea under the Alberta Occupational Health and Safety Act. The corporation was formally sentenced on July 5, 2011, agreeing to a proposed penalty of over $90,000, which included a fine of $5,000 and an $87,000 contribution to the Alberta Construction Safety Association.
Under the Alberta Code, employers must complete a hazard assessment if a worker will be working alone, and assistance is not readily available if there is an emergency, injury or illness. This particular construction project was not guarded against access by the public, nor were there specific communication devices or procedures in place for the worker to contact assistance in case of an emergency.
The employer acknowledged its failure to perform a risk assessment of the worksite, the results of which, the court heard, could have led to further action to protect the worker — such as requiring a call to the Garda dispatch centre hourly, provision of a radio to communicate, or requirements for the mobile patrol to regularly check in on its guards working alone at worksites.
This is the first OHS conviction to this author’s knowledge for a violent incident arising from a criminal act by an intruder at a workplace.
Working alone and workplace violence responsibilities
Interestingly, Garda was not prosecuted under the working alone or workplace violence-related provisions of the Alberta OHSA. As readers will know, working alone adds another layer to the already complex occupational health and safety legal responsibilities relating to violence.
Whether specific statutory obligations setting out requirements to protect workers from working alone exist expressly in the OHS provisions of their particular jurisdiction, it is important for all employers to evaluate whether they have employees working alone and what steps ought to be taken to protect those employees from violence.
The definition of working alone varies somewhat across Canada. For example, in British Columbia, working alone is defined as “employees working in circumstances where assistance is not readily available to the worker in case of an emergency or if the worker is injured or in ill health.” In Quebec, working alone occurs “where a worker performs a task alone in an isolated environment where it is impossible for him to request assistance.”
The key elements of working alone definitions are isolation and an inability to contact help in case of emergency, illness or injury. A worker is alone at work when they are on their own; when they cannot be seen or heard by a co-worker; and when they cannot expect another worker to check in. Thus, working alone includes not only those workers who are truly on their own in the workplace, but also those workers who are isolated from contact with others.
Working alone provisions exist in the occupational health and safety legislation of many provinces — in addition to workplace violence-related obligations — to assess risks and take preventive measures. For example, Part 28 of the Alberta Occupational Health and Safety Code, considers working alone a hazard for the purposes of hazard assessment, elimination and control. This means that Alberta employers must consider risks associated with working alone when they perform a workplace hazard assessment, and incorporate the working alone risks into their prevention policies and procedures.
More specifically, Part 28 requires employers to provide an effective communication system that includes regular contact by the employer, or its designate, with the worker working alone. Most working alone legislation places similar obligations on employers to:
• conduct hazard assessments specific to working alone conditions;
• create policies and procedures to eliminate or reduce the risks associated with working alone, which can include a verbal or visual check-in procedure;
• provide an effective means of communication in case of emergency, accident or illness; and,
• provide training to employees who will be working alone.
Working alone legislation focuses primarily on creating processes for repeated checks on workers working alone at appropriate intervals and establishing effective communications. Employers who are not subject to specific working alone legislation must still be cognizant of the dangers for employees working alone. For example, while Ontario does not have specific working alone legislation, the Ministry of Labour states that it will rely on the employer’s general duty to take every reasonable precaution for protection of the health and safety of workers.
Employers not subject to specific working alone legislation may be subject to workplace violence prevention legislation. Working alone exacerbates worker exposure to accidents and increases a worker’s chance of being a victim of workplace violence. Those workers who work alone in an area that can be directly accessed by the public are at even higher risk of experiencing workplace violence.
The Garda prosecution is a reminder that protecting against workplace violence means assessing the dangers that face employees working alone. Conversely, protecting employees against the dangers of working alone means protecting against workplace violence.
Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and now leads Heenan Blaikie's national OHS and workers' compensation practice. She can be reached at email@example.com or (416) 360-2897.
(The assistance of Samantha Seabrook, Associate, Heenan Blaikie is gratefully acknowledged)
Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or firstname.lastname@example.org
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