A plant supervisor instructs a worker to use a hot torch to cut an empty steel drum that previously contained an oil lubricant. The drum has a WHMIS supplier label listing all the required information, including warnings about heat, sparks and flames. But the label is old and after years of exposure to heat and moisture, is no longer legible. Moreover, the supervisor doesn’t tell the worker what was in the drum or warn of any danger. The drum explodes soon after the welding begins and the worker suffers severe burns.
Which of the following best describes the employer’s liability?
- The employer didn’t violate WHMIS because the drum was properly labeled
- The employer violated WHMIS because the worker couldn’t read the information on the label
- The employer didn’t violate WHMIS because the supervisor was to blame for any violation
- The employer violated not only WHMIS but its general OHS duty to warn workers of work hazards
- The employer violated both WHMIS and the general duty to warn.
A combustible lubricant is a hazardous substance requiring a WHMIS supplier label. The drum did have a proper label but the worker couldn’t see it. WHMIS regulations don’t expressly state that a label must be visible. But they do imply it by requiring employers to ensure that the content and significance of the WHMIS label is “understood.” The employer in this case failed to do that.
In addition to a WHMIS offence, the employer could also be charged for violating the standard OHS Act provision requiring employers to ensure that workers are properly instructed and notified of the hazards of their work. So, D is the right answer.
WHY WRONG ANSWERS ARE WRONG
A is wrong because just attaching a proper WHMIS label on a container isn’t enough if the label is or becomes illegible.
B is wrong even though it’s true that the employer did commit a WHMIS violation. The reason B isn’t the right answer is that it mentions only the WHMIS violation, not the general duty to warn.
C is wrong because employers are responsible for failures of their supervisors to warn workers of hazards or otherwise provide proper supervision—although the supervisor may also face separate charges for the offence.