Creating safe work practices, policies and procedures and training workers to follow them isn’t enough to ensure compliance. Workers don’t always follow the rules or act in accordance with their training. You need to anticipate that workers will sometimes commit safety infractions and, in certain cases, implement safeguards to ensure that they don’t result in injuries. For example, you may need to install a device that disables a machine in case a worker sticks his hand into a certain part of it. The fact that the company has a safety rule and has trained workers to keep their hands away from that area doesn’t necessarily mean it won’t be liable for an amputation caused by their infraction.
But in some cases, worker infractions do relieve a company of liability for the safety violations that result. It all depends on whether the infraction was foreseeable. A court will hold a company liable only if it finds that the company knew or reasonably should have known that the worker would break the rule or engage in the behaviour that caused the violation.
When is a worker’s safety infraction foreseeable? The laws don’t provide a definition. The best—and really only—approach is to look at how courts analyzed and decided the issue in actual cases involving worker safety infractions and draw lessons you can apply to your own workplace. So we’ve gathered some of these cases and compiled them into a Scorecard. By examining how courts approached these cases, you can take steps to ensure that your OHS program addresses foreseeable worker misconduct.
TWO-PART ANALYSIS
When a safety violation involves misconduct by a worker, the courts will generally use a two-part analysis to determine whether the company should be held liable for that violation:
Part #1: Company’s Conduct
The initial step focuses on whether the company took all reasonable steps to prevent the violation and protect the worker. For example, the court will consider whether the company had adequate safety measures in place, including safety rules and procedures, guards, PPE, etc. It’ll also look at whether the company properly trained workers on these measures and ensured that they understood their training. After all, if the company didn’t implement adequate safety measures and training on its safety rules, the worker’s conduct is almost beside the point.
Insider Says: To learn more about due diligence and what it takes to prove that a company took all reasonable steps to protect workers and comply with the OHS laws, go to the OHS Compliance Summit in Toronto on Oct. 4 and 5, 2010. This year’s theme: “Due Diligence from Theory to Practice: What It Is, How It’s Evolved, Current Best Practices.”
Part #2: Worker’s Conduct
If the court’s satisfied that the company had adequate safety measures in place, the focus shifts to the worker’s conduct. The key question: Was the worker’s circumvention of these safety measures or his misconduct foreseeable?
Determining whether something is foreseeable after the fact is tricky. To avoid hindsight, courts consider whether a reasonable person in the company’s position—knowing what it knew at the time the incident occurred—would or should have foreseen that the worker would act the way he did. If so, the court will hold the company liable; if, on the other hand, the worker’s conduct was so unusual or unexpected that the company couldn’t have reasonably foreseen it, the company won’t be held liable.
When deciding the foreseeability of a worker’s actions, the courts will consider a number of factors, including:
The conduct itself. Some kinds of conduct are more foreseeable than others. For example, the risk of workers taking shortcuts to work faster is fairly foreseeable, especially in a company where speed is valued above all else. But how far a worker might go to save time is another issue. For example, although the possibility of a worker deliberately taping down a switch to disable a safety mechanism might be foreseeable, the risk that he would physically disassemble and completely remove a guard from a machine is much more unusual and thus less foreseeable.
The nature of the safeguard or rule circumvented. The easier a rule is to break or a safeguard to circumvent, the more foreseeable the violation or circumvention is to occur.
Example: An Ontario mill installed a swing gate in the basement area under a machine, warned workers in writing that the machine had to be locked out before they could enter the area and spelled out the lockout procedures. But a worker went around the gate and was crushed to death. The court ruled that the company should have assumed that workers might circumvent the safety gate. The gate didn’t prevent a worker from entering the area beyond because it wasn’t locked or bolted; it just made access a little harder. The company should have done more to make circumventing the gate and safety procedures as difficult as reasonably possible, said the court [R. v. Stelco Inc.].
But if a worker’s conduct is “bizarre” and completely unexplainable, the court’s likely to conclude that it was unforeseeable.
Example: A supervisor told a worker to remove some of the bolts from a malfunctioning meter run and back pressure valve but leave the components in place. Unfortunately, the worker disobeyed instructions and disassembled the run. When the supervisor returned, he found the worker lying dead in the trailer. The company was convicted of a safety violations. But the court overturned the conviction, ruling that the incident was unforeseeable. The worker had been given a very clear order not to remove the components. And there was no evidence that the company could have foreseen that the worker would disobey this order. For example, dismantling the meter run would have required the worker to lift 375 lbs. onto a box by himself. The appeals court concluded that “although cases of bizarre and unforeseeable acts are exceedingly rare…the unlikely and inexplicable scenario which resulted in [the worker’s] death falls squarely within that category” [R. v. Lonkar Well Testing Ltd.].
The worker’s experience. Workers who are young or inexperienced—either in the industry in general or on a particular job or piece of machinery—will occasionally slip up when it comes to safety. Thus, it’s foreseeable that such workers may violate safety rules or engage in unsafe conduct. Conversely, it’s less foreseeable—although not unforeseeable—that experienced workers will commit violations or use unsafe work practices because they should know better.
Example: A mechanic went underneath the back of a scraper to check its hydraulic system. But after asking the operator to pressurize the system on the ejector-slider mechanism, he inexplicably stood up under the scraper and got caught in a pinchpoint, winding up in the hospital for two weeks. The court acquitted the company, ruling that the mechanic’s conduct was unforeseeable. The company had processes in place for safety and training, plus encouragement and enforcement procedures. It reasonably supervised the mechanic, who had taken numerous safety courses. Bottom line: It was simply unforeseeable that a mechanic with 15 years’ experience would stand up beneath an obviously dangerous mechanism after telling the operator to pressurize the hydraulic system for that mechanism, concluded the court [R. v. Kidco Construction Ltd.].
The worker’s safety record. It’s reasonable for a company to expect that a worker with a good track record of complying with safety rules will continue to work safely in the future. Of course, there’s a first time for everything. So the mere fact that a worker has a reputation for being safety conscious doesn’t automatically mean that his failure to comply with a safety rule was unforeseeable. But the lack of prior safety infractions or history of prior compliance is one of the factors that courts will consider.
Example: The constructor at a construction site restricted all vehicles servicing the site to a turnaround area and barred them from going in reverse unless absolutely necessary and only if aided by a signaller. The driver of a catering truck reversed without using a signaller and outside of the turnaround area, hitting and seriously injuring a worker. Both the constructor and catering company were charged with safety violations. But the court found that both defendants had taken all reasonable steps to protect workers from the hazard of reversing vehicles. The driver clearly understood the simple rules on reversing at the site because, until the incident, he’d complied with them. The court concluded that it was simply unforeseeable that the driver would suddenly disobey these explicit instructions [R. v. Racco Industrial Catering Ltd.].
Prior similar conduct by workers in general. This factor is related to the one above. If the company knows that workers in general are ignoring a safety rule by, say, failing to use fall protection equipment when required, violations of that rule are clearly foreseeable because they’re actually occurring. Thus, the company can expect to be held liable for safety violations related to worker misconduct that it was aware of and failed to address.
Example: A sawmill worker turned off an edger saw to remove accumulated debris. But he started cleaning it before the saw blades came to a full stop. His right arm touched the blade and was amputated below the elbow. The sawmill was convicted of safety offences. It appealed but lost. The review officer who convicted the sawmill described its failures as “highly irresponsible.” And the BC Workers’ Compensation Appeal Tribunal agreed. The sawmill didn’t have any lockout procedures for the edger saw nor did it have safe work procedures for cleaning the saw. In addition, a supervisor knew that workers routinely cleared the saw while the blades were still spinning but did nothing to correct this “obviously unsafe work procedure,” said the Tribunal [WCAT-2008-02347].
In a similar vein, if the company’s aware that workers haven’t been following safety procedures and doesn’t discipline them, it can expect to be held liable if they get hurt as a result of subsequent violations.
Example: A safety inspector saw two workers without fall protection equipment standing on the roof of a building 9.1 meters high. They then climbed into the man-basket of a boom lift to descend from the roof. The company was convicted of several safety violations. It appealed but the BC Workers’ Compensation Appeal Tribunal upheld the conviction. The company had trained the workers on the use of fall protection equipment and safe operation of a boom lift but couldn’t prove that it ever tested the workers to ensure that they understood their training. In addition, at the time of the violations, the company didn’t have a progressive discipline program. It also didn’t consistently discipline workers for safety infractions. As a result, workers were willing to violate safety rules because they didn’t understand that such violations could have serious employment consequences for them, concluded the Tribunal [WCAT-2009-01133].
THE SCORECARD
Click here to access a Scorecard that includes nine cases from AB, BC, ON and SK in which companies were charged with safety violations based on worker misconduct. The Scorecard tells you what happened and how the court (or Tribunal) analyzed the company’s liability for the worker’s actions. In five cases, the companies won; in the remaining four, they lost.
Conclusion
Workers are human beings and human beings make mistakes. They also sometimes disobey rules that are meant for their own protection. But as the Ontario MOL argued in one case, OHS law doesn’t “rely on competent workers to take care of themselves, but exists to protect negligent, stupid or reckless workers from potential harm at the workplace” [MOL v. Ontario Food Terminal Board (No. 2)].
Thus, the simple fact that a worker violated a safety rule or engaged in unsafe conduct isn’t enough to excuse your company from liability for any resulting violations. However, if the company exercises due diligence and takes steps to minimize the likelihood that workers will violate safety rules and use unsafe work practices, it’ll likely avoid liability if a worker’s misconduct results in a safety violation.
SHOW YOUR LAWYER
Ontario (Ministry of Labour) v. Ontario Food Terminal Board (No. 2), [2006] ONCJ 433 (CanLII), Nov. 14, 2006
R. v. Kidco Construction Ltd., [2009] A.J. No. 743, July 2, 2009
R. v. Lonkar Well Testing Ltd., [2009] ABQB 345 (CanLII), June 5, 2009
R. v. Racco Industrial Catering Ltd., [2008] O.J. No. 4496, Nov. 7, 2008
Stelco Inc. v. Ontario (Ministry of Labour), [2006] CanLII 28110 (ON S.C.), Aug. 15, 2006
WCAT-2008-02347, [2008] CanLII 49973 (BC W.C.A.T), Aug.8, 2008
WCAT-2009-01133, [2009] CanLII 36234 (BC W.C.A.T.), April 27, 2009
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