The Importance of Ensuring that Company Safety Policies Are Up to Date

A worker in Alberta was operating a mill that prepares rubber to retread industrial tires. Rubber got stuck to the back roller. The worker went to the back of the mill to fi x the malfunction. He climbed over a guardrail, lost his balance, fell onto a roller and got his hands caught in a pinchpoint. Part of the worker’s right arm and several fi ngers on his left hand had to be amputated. The partnership that operated the plant was convicted of a safety violation and fi ned $70,000. It appealed. The appeals court upheld the conviction, ruling that the partnership didn’t exercise due diligence. It noted that after the procedures for operating the mill changed, the partnership failed to update the safety notice on the mill, creating ambiguity about which side of the mill workers could safely access while the mill was operating [R. v. Kal Tire Ltd.]. THE PROBLEM Compliance 101: Companies must have rules, policies and procedures for the safe operation of equipment and safe performance of various jobs in the workplace. But companies can’t create safety rules and policies once and then rest on their laurels. They must constantly evaluate and, if necessary, change those rules and policies to refl ect new operational and legal realities. As the Kal Tire case shows, failing to keep the company’s safety policies and procedures up-to-date can endanger workers and undermine its due diligence defence in a safety prosecution. THE EXPLANATION The workplace isn’t a static environment. Operations, processes and equipment are constantly changing. The same is true of legal requirements. When changes in the workplace or the OHS laws occur, the company’s safety rules and policies may be impacted. For example, rules that were appropriate when workers performed a task one way may no longer make sense now that workers use a different technique to perform that task. Existing safety rules also may not address new hazards created by the new technique. And safety policies that had been legal under the old OHS law may no longer be legal under a new law. So it’s imperative that the company continually reviews its safety rules and procedures and makes adjustments when necessary. Leaving policies and procedures in place after they’ve become outdated makes the workplace more dangerous and increases the company’s liability risks. That’s the hard lesson the plant learned in the Kal Tire case. One of the safe work practices listed on a safety notice posted by the mill barred workers from being within the guardrail on the feed side of the mill when the mill was operating. The plant had installed the guardrail on the mill after two serious incidents. At the time, the usual practice had been to feed rubber into the mill from the guardrail side. That’s why the safety notice referred to the guardrail side of the mill as the “feed side.” However, feeding the mill over the guardrail proved to be awkward, so the company began having workers feed the mill from the non-guardrail side. Soon, the guardrail side, which the notice referred to as the “feed side,” had become known as the “back side” and the non-guardrail side, from which the feeding was actually taking place, had become known as the “front side.” Unfortunately, the company never rewrote the safety notice to refl ect the change in operations and terminology. Thus, when the incident in question occurred, the wording of the safety notice banning workers from being on the “feed side” of the mill during operation, which may have been perfectly clear when the guardrail was fi rst installed, was out of date, ambiguous and inconsistent with the mill’s current operation. To refl ect the modifi ed operation, the notice should have notifi ed workers that the mill had to be shut down before they could enter the guardrail side. But the notice didn’t make this clear. The court concluded that the plant’s failure to update the safety notice to remove the ambiguity after its procedures had changed was an indication of its lack of due diligence. THE LESSON The plant in the Kal Tire did nearly everything right. It installed a guardrail on the mill to protect workers from a hazard. It posted safety instructions near the mill. And it changed the mill’s operating procedures to make feeding the mill less awkward for workers. However, it made one seemingly small but ultimately signifi cant mistake: It didn’t update the safety notice to refl ect the changes in procedures. You and your fellow offi cers and directors need to ensure that we don’t make similar mistakes in our company. You’re neither responsible for drafting the company’s safety rules and policies nor for updating them when requirements change. But you are responsible for ensuring that somebody in the company stays on top of changes in the workplace or the OHS laws that may render our safety rules and policies unclear, inappropriate or illegal. And when such changes occur, our safety policies and procedures must be updated accordingly to ensure that they still adequately protect workers and comply with all legal requirements. Ensuring that such a process is in place and is being implemented is one of the most important things you and your fellow offi cers and directors can do to ensure the company is exercising due diligence to prevent workplace injuries and illnesses and complying with its OHS obligations. SHOW YOUR LAWYER R. v. Kal Tire Ltd., [2008] ABQB 551 (CanLII), Sept. 9, 2008