One of the most fundamental components of any effective OHS system is the creation of safety rules or procedures that address the hazards in that particular workplace. But simply creating safety rules isn’t enough. In judging the adequacy of safety rules, it’s not just what you say but how you say it that counts. In other words, your company’s rules must be clearly stated and communicated to workers. They may be detailed and more stringent than legal requirements and industry standards. But if workers don’t understand or aren’t aware of the rules, they’re useless. An oilfield service company recently learned this lesson the hard way. Although the case comes from Alberta, the due diligence principles it addresses apply across Canada.
THE CASE
What Happened: As two workers for an oilfield service company were unloading a highly flammable petroleum product from their service truck into a metal storage tank, the truck engine began to rev. Flammable vapours from the tank exploded, seriously injuring the workers. The explosion occurred either because the truck wasn’t grounded and bonded to the tank or because the truck was parked too close to the tank (about three metres) with its engine running. The company was convicted of violating the so-called “general duty clause” of the Alberta OHS Act, which requires employers to ensure “as far as reasonably practicable” workers’ health and safety. Among other things, the trial court ruled that the company had failed to establish clear safety rules. The company appealed, arguing that the trial court’s verdict was unreasonable.
What the Court Decided: The Alberta Court of Queen’s Bench upheld the verdict as reasonable.
How the Court Justified the Decision: The company claimed that it had a clear safety rule on the unloading of petroleum products: Trucks had to be at least 15 metres from the tank during unloading. The company stressed that this rule exceeded the industry norm, which was a seven metre safe distance rule. The appeals court said that there’s “nothing wrong with an employer having safety rules or standards that exceed industry norms.” In fact, it’s laudable that the company “attempted to set its standards to a high level,” noted the court. But the issue wasn’t whether the company had a sound safety rule; it was whether the company had a clear safety rule.
The appeals court found ample evidence to support the trial court’s conclusion that the company’s 15 metre rule wasn’t clear or clearly communicated. The individual who trained one of the workers involved in the incident wasn’t aware of the 15 metre rule. He thought the industry standard seven metre rule was in effect and trained that worker accordingly. The injured worker also testified that he was only aware of a seven metre rule. And the company’s safety materials didn’t clearly set out the safe distance rule, instead referring to a variety of distances (eight, 15 and 50 metres) for various circumstances. The appeals court also rejected the company’s argument that it should consider the confusion in the oil industry over the safe distance rule. The court said, “[I]t is up to the employer to set clear safety rules for its workers. If there is systemic confusion in an industry, it is the responsibility of the employer to deal with that confusion, and resolve it for its workers” [R. v. Rose’s Well Services Ltd., [200] ABQB 1 (CanLII), Jan. 2, 2009].
ANALYSIS
The appeals court noted that the overall OHS system of the company in the Rose’s Well case had a lot to commend itself. It was led by a skilled safety coordinator. The OHS system performed well on external audits. The company tried to set safety rules that exceeded industry standards. The company and its senior management were aware of their safety duties and devoted financial and human resources to fulfilling these obligations. But despite these efforts, there were obvious flaws in the system. As the appeals court noted, “Too much was left to chance.” The lesson: All aspects of an OHS program must function soundly to meet the standards of due diligence. So by all means, set your company’s safety standards high. But remember there’s no point to setting high safety standards if they aren’t clearly communicated to the workers who are expected to comply with them.
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