Can a Worker Be Prosecuted for an OHS Violation Even if He Was Just Obeying Orders?

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SITUATION

A power company’s subcontractor requires workers to use an unsafe method to clear trees and brush from under power lines. The method also violates OHS regulations, which require the use of ropes to control the direction of a tree’s fall. Workers know that using the method could cause trees to fall on energized power lines. But the safety culture is lax so workers go with the flow. A worker fells five trees using this method without an incident. But the sixth tree lands on a power line, which falls on a co-worker. He suffers serious burns that result in the amputation of his legs, right arm and a finger. The power company and the subcontractor’s owner plead guilty to OHS violations and are fined more than $300,000.

QUESTION

Can the worker be prosecuted for violating the OHS laws?

  1. Yes, because he caused serious injury to a co-worker.
  2. Yes, because he used an unsafe work method in violation of his OHS duty not to endanger himself or co-workers.
  3. No, because only employers can be prosecuted for violating the OHS laws.
  4. No, because he was only following orders in using the unsafe method.

ANSWER

B. The worker can be prosecuted because he violated his duty to work safely under the OHS laws.

EXPLANATION

Workers who disobey safety procedures can be prosecuted for OHS violations. This hypothetical based on an Ontario case raises the question of whether a worker can also be liable when the safety violation is the result of obeying orders to work unsafely, which is what happened in this case. Even though the unsafe method had been established by the subcontractor and the worker just did what he was told to do, the court found him liable for an OHS violation. The worker could and should have exercised his right to refuse unsafe work. But the court also ruled that the power company and subcontractor were “primarily” to blame for the incident and refused to hit the worker with a large fine. Instead, it sentenced him to 18 months’ probation and ordered him to perform 100 hours of community service, make a $500 donation to the medical facility that treated the injured co-worker and write a letter describing what he learned about workplace safety from this incident.

WHY WRONG ANSWERS ARE WRONG

A is wrong because the fact that the worker’s actions resulted in serious injury to a co-worker doesn’t necessarily mean that he committed a safety violation. For example, if the incident was caused by an unforeseeable circumstance, then the worker wouldn’t be liable despite the injuries his co-worker suffered.

C is wrong because employers aren’t the only ones who can be prosecuted for violating OHS laws. The government can also go after company officers and directors, supervisors, workers and suppliers for safety violations.

D is wrong because using unsafe methods to fell the trees was an OHS violation even if the worker was only obeying orders. The power company and owner of the subcontractor committed safety violations by requiring use of an unsafe felling method. But their violations don’t absolve the worker of responsibility for his own safety lapses in using a method he knew was dangerous.

SHOW YOUR LAWYER

R. v. Campbell, [2004] O.J. No. 1144, March 12, 2004