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The omniscient employer

By By Norm Keith

The Court of Appeal for Ontario has recently rendered a decision in a prosecution under the Occupational Health and Safety Act (OHSA) that has broad implications for employers. In addition to implications for workplace safety, the case also has critical implications for employer discipline of workers for safety contraventions.

{mosimage}The decision in R. v. Dofasco Inc. is very important for human resources managers to understand and apply in setting and enforcing safe work procedures.

The Dofasco case arose out of a workplace accident where a worker suffered a serious hand injury while working on a cold-rolling steel mill in the Hamilton area. The company was charged with the offence of contravening s. 25 of the Regulations for Industrial Establishments. Dofasco took the position at trial that there was a procedure established for safe operation of the cold-rolling steel mill. The worker was required to use a hand-gripper to assist in the feeding of the steel coil into the mill. The worker deliberately failed to follow this procedure, which directly caused the accident.

The trial court held that the availability of the handgrippers would put the worker at arm’s length from any pinch points. The court further held that there was no legal requirement for a guard on a pinch point on the cold-rolling steel mill. Therefore, the court concluded that the Ministry of Labour had not proven the alleged contravention of s. 25. An acquittal was entered and the OHSA charge was dismissed.

The Ministry of Labour appealed, unsuccessfully, to Justice Zuraw. He held that he was unable to find any clear and palpable error in law or fact, or in mixed law and fact. The ministry then obtained leave to appeal to Ontario’s highest court, the Court of Appeal.

{mosimage}In considering four issues on the appeal, the court’s decision regarding the worker’s deliberate conduct in not following company procedure has the most important implications for human resources managers. Dofasco argued that it should not be held liable under s. 25 where an employee is injured as a result of his deliberate failure to follow company procedure. There was no doubt from the evidence at trial that the injured worker and his co-workers did not follow company procedure on which they were trained.

The court considered and rejected Dofasco’s argument for at least three reasons. First, the court said, “Employees do not deliberately injure themselves. The requirements for guarding of machinery is to protect employees in the workplace from injuries due to both inadvertent and advertent acts.” In other words, the guarding requirement is intended to protect workers from intentional and negligent actions.

Second, the court further said, “The worker here did not disobey the work instructions to spite or injure the employer. They did so because the work practice specified did not readily accomplish its task with light gauges of steel stock such as they were processing on the day in question. The employees could have pulled the roll of steel off the mill. That was the specified procedure, but it would have meant delays and curtailed production. The injury he suffered was a result of his deliberate act, but it was an act done in furtherance of productivity in the work undertaken for the employer and not for any other reason.” The court said that the worker’s disobedience was to advance the employer’s interest. With great respect, the evidence suggests that the worker also wanted to avoid extra personal work and effort.

Third, the court held that, “To suggest that the responsibility for the injury, pain and suffering rests squarely on his shoulders would be unfair because defects in the process for performing the work in question and the  absence of a physical guard contributed significantly to the accident.” This comment clearly misses the underlying philosophy of the OHSA – the Internal Responsibility System (IRS). The IRS places duties on all workplace stakeholders, not just on employers.

Since the court said the worker misconduct was not the exclusive factor causing the accident, it decided to give no effect to this factor. The court considered and rejected the employer’s arguments regarding the  interpretation of s. 25 and the defense of due diligence. In so doing, the court failed to make reference to the foreseeability of the worker’s conduct, even though the same court’s decision in R. v. Timminco Ltd. recognized its relevance in the due diligence defence. The acquittal was set aside, appeal allowed, and a conviction registered. Dofasco was remitted back to the Justice of the Peace for sentencing. Regrettably, it  appears that the employer did not argue, and the court did not consider, the legal duties on workers under s. 28 of the OHSA and the equivalency provisions of the Regulations for Industrial Establishments, s. 2.

What, then, are the implications for human resources managers and employers in light of this decision? In my view, the court has applied the OHSA in a manner that compels employers to do the following:

• Audit their workplaces to ensure compliance with OHSA and applicable regulations with appropriate controls;

• Ensure supervisors and workers have adequate training in safe work procedures and appropriate controls;

• Enforce safe work procedures and appropriate controls by appropriate progressive discipline, up to and including discharge.

Human resource managers and employers in Ontario, and across Canada, must come to realize that OHS laws, regulations, the courts, and public opinion set high standards for worker safety. Worker duties are infrequently enforced by OHS regulators. Supervisors are not as accountable as employers. Therefore, workers who deliberately refuse or fail to follow safety procedures will likely only be held accountable by progressive discipline.

Therefore, in conclusion, employers may not rely exclusively on unforeseeable worker misconduct to defend OHSA charges arising from a workplace incident. Investing in health and safety legislative audits, control measures, and training is necessary to establish the defense of due diligence. Finally, management must vigorously enforce their safety procedures and control measures by training, supervision, and progressive discipline. Placing sufficient resources, expertise, and disciplinary action into the workforce is clearly required by this recent decision of the Court of Appeal. In my next article, I will review the use of OHS laws, policies, and procedures, and how they relate to worker discipline.

Norm Keith, B.A., LLB, CRSP, a partner in Gowling Lafleur Henderson LLP, leads the national occupational health and safety practice, is the author of Canadian Health and Safety Law (Canada Law Book), and is the only practicing lawyer in Canada who has achieved the Canadian Registered Safety Professional designation. He may be contacted at 1-866-862-5787, ext. 85699.

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