SUPERVISORS: Who in Your Workplace Can Be Liable as a Supervisor?

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Prosecution of supervisors for safety violations, once an almost exclusively Ontario phenomenon, is becoming increasingly common in many parts of Canada. In just the past year, supervisors have been charged or ticketed in BC, MB, SK and YK—and even in AB and NS where the OHS laws don’t impose specific duties on supervisors. Adding to the urgency is that when a supervisor commits a safety violation, it can result in charges against your company, too.

Managing supervisor liability risks starts by figuring out who at your workplace would be considered a supervisor under OHS laws. Unfortunately, doing so isn’t as simple as it might sound because supervisor status is based not on job title but function. We’ll tell you why you need to identify the people in your workplace likely to be considered supervisors, how to do so and what to do once you’ve identified them. There’s a Scorecard of cases in which courts ruled that certain individuals were—and weren’t—considered supervisorsThere’s also a chart that spells out the specific duties of a supervisor under each jurisdiction’s OHS laws.

WHY YOU NEED TO IDENTIFY SUPERVISORS

There are two main reasons you need to identify the supervisors in your workplace:

Minimize the company’s liability risks. The OHS laws require employers to ensure that workers are properly supervised by competent supervisors. So to fulfill this duty, the company must know who its supervisors are and ensure that they’re doing their job competently.

Minimize individuals’ liability risks. The other reason you need to identify who your supervisors are is to protect the individuals at your company who could be prosecuted as supervisors. Explanation: Any individual who performs supervisory functions runs the risk of liability if he doesn’t meet the responsibilities that come with those functions. Eight jurisdictions (BC, MB, NL, NT, NU, ON, SK and YT) specifically define “supervisor” and spell out supervisory responsibilities. In the other six jurisdictions where supervisory duties aren’t defined, individuals with supervisory roles can be charged for OHS violations not as supervisors but as either “employers” or “workers.”

Bottom line: One way or another, supervisors who don’t supervise effectively can be charged with OHS violations.

Supervisors also face liability risks under the Criminal Code for criminal negligence. When Bill C-45 took effect in March 2004, it changed the law to apply to any person who directs or has the authority to direct how another person does work or performs a task. Such direction or authority, which supervisors typically possess, carries with it the responsibility to take “reasonable steps” to protect those doing or affected by the work. Failure to take reasonable steps to protect the workers they supervise can result in criminal negligence charges if such failure was the result of wanton or reckless indifference to life and safety and resulted in death or serious injury. In fact, the first person ever charged with criminal negligence under C-45 was a construction supervisor in Ontario.

HOW TO IDENTIFY SUPERVISORS

So how do you determine which individuals in your workplace could be considered supervisors under the OHS law? The first place to look is at the definition of “supervisor” in the OHS laws, if you’re from one of the eight jurisdictions that include one. These definitions vary:

  • A person who instructs, directs and controls workers in the performance of their duties (BC);
  • A person—YT says “competent person”—who has charge of a workplace or authority over a worker (MB, ON and YT);
  • A worker who has one or more workers under his or her control or supervision (NT and NU); and
  • A person who’s authorized by an employer to oversee, direct or control work or workers (NL and SK).

Notice that these definitions have one thing in common: They’re based on the functions the person performs in the workplace—not the person’s title. Thus, workers who exercise supervisory functions have been charged as “supervisors” under OHS laws even if they didn’t have a “supervisory” title or think of themselves as supervisors.

Conversely, in the six jurisdictions where individuals can’t be charged as supervisors, a person with a supervisory title and who does think of himself as a supervisor could be charged as either a “worker” or an “employer” depending on the person’s actual functions in the workplace. (See the Scorecard on page X for cases in which various types of individuals were treated as supervisors—or considered not to be supervisors—by the courts.) This kind of broad interpretation of the definition of “supervisor” has also been used to hold individuals of higher rank within a company, including senior managers and corporate officers, responsible as “supervisors.”

So when trying to identify the individuals in the workplace who might be considered supervisors, don’t look just at titles but also at whether the person has supervisory authority. According to court rulings, such authority typically includes the power to:

[  ] Hire and fire

[  ] Promote and discipline

[  ] Give awards or bonuses

[  ] Grant workers’ vacation and leave of absence requests

[  ] Determine how workers are paid

[  ] Schedule work

[  ] Decide the makeup of a work crew

[  ] Decide which equipment to use

[  ] Discuss safety issues with workers

[  ] Provide safety training to workers

[  ] Discuss details of the job with workers

[  ] Deal with worker complaints

[  ] Stop work if hazards arise.

ENSURE SUPERVISORS GET PROPER TRAINING

The next step is to ensure that individuals who would be considered supervisors understand their supervisory responsibilities and are prepared to meet them. First, make sure that they’re aware that they’re considered supervisors under the OHS law and know what their obligations are as supervisors. Then, provide them with the training they need to fulfill their duties as supervisors. Not only is doing so a best practice but the OHS laws often require employers to provide such training. For example, the federal Canada Labour Code requires employers to ensure that employees who have supervisory responsibilities are adequately trained in health and safety and are informed of the responsibilities they have under the law [Sec. 125(1)(z)].

Such training should cover, at a minimum:

  • Requirements for supervisors under the OHS laws;
  • Other relevant requirements under the OHS laws;
  • Rights and responsibilities of workers, including work refusals;
  • Relevant elements of the company’s OHS program, including roles, duties, and responsibilities;
  • Risk management;
  • Hazard analysis and safe work procedures;
  • Workplace inspections;
  • Incident investigations;
  • Near miss reporting;
  • Emergency preparedness;
  • WHMIS;
  • PPE;
  • Safety training;
  • Motivating workers to work safely; and
  • Dealing with safety infractions by workers.

As with all safety training, make sure to test supervisors to ensure that they understood their training and review their work to make sure that they’re applying what they learned. And keep records of all training provided to supervisors.

SUPERVISOR RESOURCES: Resources on supervisors and safety published by various jurisdictions.

THE BOTTOM LINE

Supervisors are an important part of a company’s safety program. So you need to understand exactly what their health and safety duties are and take steps to ensure that they’re adequately prepared to fulfill those duties. If you don’t, both individuals considered supervisors for OHS purposes and the company may face liability.