NEAR MISSES: Should You Discipline For Violations that Cause a Near Miss?

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Near misses—that is, situations where something goes wrong but no injury or property damage result—are valuable sources of information. They give safety coordinators the chance to pinpoint the weaknesses in their systems, programs and procedures and make corrections to prevent future incidents. Near misses also happen all the time—some studies say up to 600 times more often than fatalities. So you should be able to use them to make your workplace safer.
The bad news: In the real world, many near misses go unreported by the workers involved, especially when the near miss is the result of a worker’s violation of safety rules (such as when a worker almost gets hurt after reaching his hand over a machine guard to get inside a piece of equipment he knows is dangerous). Faced with the risk of discipline, many workers won’t report the near miss.
So what’s an employer to do? You want workers to report near misses. But if the worker who commits the violation (or a co-worker who witnessed it) reports what happened to his supervisor, should the worker who committed the violation be disciplined? For many employers, the answer is clear. Their approach: Tell us about the near miss and we won’t discipline you. Although this policy improves your chances of learning about near-misses, it’s a devil’s bargain that carries adverse and, at least to many employers, unexpected legal consequences. Stated simply, such a policy kicks the legs out from under your due diligence defence and  heightens your risk of liability for OHS offences.
This article will explain what safety coordinators need to know to resolve this dilemma. First, we’ll explain how disciplining workers for safety violations affects due diligence. Next, we’ll lay out the three approaches you can take to near miss reporting. We won’t tell you which one to choose. We’ll just set out the pros and cons and legal implications of each approach so you can make an informed decision on your own. Finally, there’s also Model Language at the end of this article that you can adapt and include in your company’s near miss reporting policy.

What the Law Requires

As a safety coordinator, your primary job is to prevent accidents. But that’s not always possible. So your secondary job is to ensure that if accidents occur, your company and the individuals within it won’t be held liable.
The key to avoiding liability is to exercise due diligence. Your obligation: take all reasonable steps under the circumstances to ensure that the company complies with the OHS laws and safeguards its workers against foreseeable risks.

Discipline & Due Diligence

“Discipline is a key component of due diligence,” says Toronto OHS lawyer Ryan Conlin. Norm Keith, another Toronto OHS lawyer, agrees, noting the critical role of “worker accountability under due diligence.”
Explanation: In the Sault Ste. Marie case where due diligence was “invented,” the Canadian Supreme Court said that taking all reasonable steps involves establishing a “proper system to prevent commission of the offence.” Among other things, there must be safety policies and procedures for your workplace. But simply having policies and procedures isn’t enough, notes Conlin; you must also enforce those policies and procedures. That means disciplining workers who violate the rules.
Conversely, not disciplining workers for committing a safety violation jeopardizes your ability to make out a due diligence defence if an accident occurs and you’re charged with a violation. Leniency makes workers less inclined to follow the rules, explains Conlin. And, in the context of a prosecution, it also suggests that your safety system is a façade and that you’re not really serious about keeping your workplace safe. Prosecutors in OHS cases are often able to secure convictions by showing that the employer didn’t enforce its safety rules against workers who committed violations.
Example:  A worker at an Ontario trucking company was crushed to death between a truck and a concrete loading dock. The worker had apparently been trying to fix a broken iron plate by himself in violation of company policy, which required a lookout. The company was convicted of failing to take reasonable precautions to protect workers from the hazard of moving trucks in the loading dock area.
During the trial, the dock supervisor admitted that while the company had safety procedures, no worker had ever received a written warning, suspension or dismissal for not following the rules. The Ontario characterized the company’s procedures and measures as “sloppy” and the atmosphere as “very laissez faire.” The court explained that the company needed to have a firm set of guidelines that were “rigidly enforced” [R. v. Wilson’s Truck Lines Ltd.].
Insider Says: Remember that courts look at two factors when considering a due diligence defence: 1. Did you know or should you have known about the risk? If a near miss has been reported to you or the worker’s supervisor, then you’re on notice that a risk exists. 2. Did you do enough to guard against the risk? If you knew that the near miss occurred because a worker wasn’t following your safety rules and you let that worker get away with the safety violation simply because he came forward, a court may very well decide that you didn’t do enough to guard against that risk—especially if the same behavior leads to an actual accident.

Discipline for Violations that Lead to Near Misses

The duty to enforce safety rules applies any time a worker violates a safety rule, not just when the violation results in an actual accident or injury but also when it leads to a near miss. In other words, the need for discipline is triggered by the act of committing the violation not its ultimate consequence. The fact that the worker lucked out and nobody got hurt is no excuse—at least in the eyes of OHS officials, prosecutors and judges. However, you should and must consider the consequences in deciding how harsh a penalty to impose, notes Conlin.
Incidentally, in case you’re worried, workers (and their unions) can’t use the lack of actual injury to get a court or arbitrator to overturn the disciplinary action.  
Example: A forklift operator in Alberta had a near miss and received a verbal warning as a result. After another near miss and an incident in which the forklift operator moved a box with his forklift when a person was inside it, he was removed from that position. An Alberta court upheld the decision to reassign the worker, ruling that the forklift operator deserved to be removed from the position [Holwen v. Alberta Plywood Ltd.].

Getting Workers to Report Near Misses

Of course, if you do discipline a worker for committing a violation that leads to a near miss, workers may stop reporting near misses. Safety coordinators thus must confront a very difficult decision:

  • Do I impose discipline in near miss situations for the sake of due diligence and thereby run the risk of discouraging the reporting of near misses? Or
  • Do I cut workers some slack in order to encourage them to report near misses and thereby heighten my company’s exposure to liability?

 

Three Approaches to Near Miss Reporting

Which choice should you make? The Insider is written by lawyers and its mission is to keep you in compliance with the OHS laws. So our suggestion is that you opt for the first approach. However, we also understand that there are times when safety coordinators must look beyond what the law requires and do what they think is right. So it’s defensible to choose the second option. After all, if you really believe that the reporting of near misses will significantly improve your chances of preventing injuries, it might be worth incurring additional liability risks to keep the reports flowing.  
As a practical matter, there are three ways to structure a near miss policy:

Option 1: Blanket Immunity

Under this approach, workers who report a near miss (or are the subject of a co-worker’s near miss report) aren’t subject to discipline, no matter how flagrant the safety violation they committed.

  • Pros. Blanket immunity encourages workers to report all near misses—no matter what the cause—because they won’t have to fear any repercussions. And by maximizing near miss reporting, you’ll arguably make the workplace safer.
  • Cons. This approach has two big disadvantages. First, it ties your hands when it comes to disciplining a worker for a safety violation. So even if the violation that caused the near miss is flagrant and inexcusable—say the worker lights up a cigarette in a corn silo or doesn’t follow lockout procedures—there’s nothing you can do to the worker. Second, by systematically refusing to discipline workers for safety violations that led to near misses, you’re making a due diligence defence almost impossible if an actual accident should happen down the road.

Option 2: Strict Discipline

This approach is the opposite of the first option. Workers who commit safety violations that result in incidents subject to discipline regardless of whether the incident was a near miss or an actual injury. The fact that the worker “fesses up” and reports the near miss doesn’t get him off the hook. But you can treat it as a “mitigating factor” warranting a lesser penalty, for example, a written warning instead of a suspension.
Insider Says: Consider applying the same rule if the worker who committed the violation is turned in by a co-worker. Reason: In addition to encouraging workers to “turn themselves in”, you want them to report wrongdoing by their co-workers. Extending leniency might overcome the natural reluctance of workers to “rat out” co-workers who commit safety violations. In other words, the worker might be more inclined to report the wrongdoing if he knows the co-worker’s punishment won’t be so severe.

  • Pros. Conlin and Keith agree that this approach is optimal from a due diligence standpoint. Disciplining workers for all safety violations regardless of their ultimate consequences (although consequences should affect the severity of the penalty) demonstrates your commitment to maintaining a safe workplace and will bolster the argument that you exercise due diligence.
  • Cons. Reserving the right to discipline workers for safety violations that cause near misses will likely have a “chilling effect” on the reporting of near misses, notes Keith.

 

Option 3: Anonymous Reporting

Under this approach, workers are permitted to report near misses anonymously.

  • Pros. Just like a blanket immunity approach, this approach encourages near miss reporting because workers won’t have to reveal their identities.
  • Cons. While this approach is better than the blanket immunity approach, Colin and Keith still don’t recommend it. Anonymous reporting makes disciplining workers for safety violations difficult (but not necessarily impossible) because you may not be able to identify the worker responsible for causing the near miss. In addition, not knowing the identity of the person who reports the near miss makes it harder to investigate and correct the problem. Last but not least, to the extent that it insulates workers from discipline, an anonymous reporting approach hurts your due diligence defence.

 

What Near Miss Reporting Policy Should Say

Regardless of which approach your company decides to take, all employers should have a near miss reporting policy and that policy should do two things:

1. Require the Reporting of Near Misses

The first thing your policy should do is state that workers have a duty under OHS laws to report near misses. Do they? Arguably, yes. All provincial OHS laws impose duties on workers. Although none of the OHS laws specifically mention a duty to report a near miss, they all imply one. There are two approaches:
Duty to Report: Eight jurisdictions (Federal, BC, NB, NS, ON, PE, QC and YK) require workers to report any hazards or harmful conditions, which arguably includes near misses.
Duty to Show Reasonable Care: Six jurisdictions (including AB, MB, NL, NT, NU and SK) say workers have a general duty to take reasonable care to ensure their own safety and that of their coworkers. A duty to report near misses could be inferred from this.
No matter what your province’s law says, you should require near miss reporting as a matter of company policy, says Conlin.

Model Language

Workers are required to report any injuries, illnesses, accidents, unsafe acts, and unsafe conditions, including near misses, as defined herein, to their immediate supervisor or to the safety coordinator.

2. Define What a `Near Miss’ Is

Workers may not understand exactly what a near miss is, so include a definition of “near miss” in your policy. That definition should be as broad as possible, advises Conlin.

Model Language

“Near Miss:” An undesired occurrence which did not result in personal injury or property damage but could have resulted in or had the potential to cause personal injury, property damage, or both.

Also, if you impose discipline for safety violations that result in near misses, make it clear in your policy that  you’ll consider the fact that they reported the near miss in determining the appropriate discipline, Conlin advises.

Model Language

If a worker 1) commits a safety violation that results in a near miss (as defined herein), and 2) reports that near miss to his immediate supervisor or the safety coordinator, the fact that the worker came forward and reported the violation will be considered in determining the appropriate discipline, and will likely result in a less onerous penalty.

Conclusion

Ultimately, your company must decide where its priorities lie. If your paramount concern is to encourage the reporting of near misses, don’t discipline workers who report near misses. If your priority is to ensure compliance with the standard of due diligence, you should be prepared to mete out discipline for any safety violation, even ones that result in only a near miss. Just make sure you understand the legal implications of your decision.

INSIDER SOURCES
Ryan Conlin: Stringer Brisbin Humphrey, 110 Yonge St., Ste. 1100, Toronto, ON M5C 1T4.
Norm Keith, B.A., LL.B., CRSP: Partner, Gowling Lafleur Henderson LLP, 1 First Canadian Pl., Ste. 600, 100 King St. W., Toronto, ON M5X 1G5.

SHOW YOUR LAWYER
Holwen v. Alberta Plywood Ltd., [2005] A.J. No. 796, June 30, 2005
R. v. Wilson’s Truck Lines Ltd., [1998] O.J. No. 3219, May 22, 1998
R. v. Sault Ste. Marie (City), (1978) 85 D.L.R. (3d) 161 (S.C.C.)