due-diligence

Health and Safety Responsibility

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Law and justice of Canada concept with a 3d rendering of a gavel on a wooden desktop and the Canadian flag on background.
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Who is really responsible?

Understanding the complexities of the Canada health and safety (H&S) legal framework is a difficult challenge for any new Human Resources professional.

A brief review on how Health and Safety legislation is structured in Canada may be helpful. All provinces, territories and the Canadian Federal Government have their own Health and Safety laws and structures.

Click here to get a good overview of H&S in Canada.

All Health and Safety legislation is based on common principles which include:

  • Duties and responsibilities of employers, supervisors and workers
  • The three basic health and safety rights; to know, to participate and to refuse unsafe work
  • Enforcement by inspectors which can lead to fines, potential criminal charges and imprisonment.

At its foundation, Health and Safety laws are based on a legal concept called due diligence. The Canadian Centre of Occupational Health and Safety (CCOHS) defines due diligence as:

“Due diligence is important as a legal defense for a person charged under occupational health and safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.”

The interesting thing to note is that due diligence can only legally be demonstrated by an employer’s safety actions before a negative safety event, not after! No matter how much an organization improves after an incident, that improvement has no bearing on an organization’s actions (or lack of actions) prior to the negative safety event.

In addition to provincial regulatory legislation, another legal layer has been added through Bill C45 which allows for individuals and employers to be found liable under the criminal code of Canada.

Recently, the tragic death of a young construction worker in Ottawa brings all of these legal concepts into reality.

Click here to read the full story.

It is interesting to note that this particular construction company was investigated by the Ministry of Labour on a very similar issue of falling ice injuring a worker prior to this devastating workplace fatality.

Unfortunately, this is a story that plays out far too often in Canadian workplaces. There are near miss incidents where no one is hurt and the issue is ignored. Provincial inspectors issue orders that do not go far enough. When a worker is killed, more orders are written and maybe, just maybe, the fatality will be investigated under Bill C45.

Clearly, our Health and Safety legal structure is not as effective as it should be. It is definitely time to ensure that responsibility for keeping our fellow human beings are safe, rests with all of us, not just with some of us.

Discussion Question:

  1. Many senior managers and supervisors seem not to understand the complexities of Canada’s H&S legal system. You have been asked by your VP of HR to prepare a ten minute presentation on: your provincial H&S act, due diligence and Bill C45. Include at least one recent current example of where a workplace incident went wrong and its potential impact on the organization and individual management responsibilities.

Understanding the Impact of Poor Health and Safety

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Horizontal view of depressed young woman crying
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Picture this: You are a manager of a medium-size manufacturing company. The company is big enough to be considered a significant employer but small enough for you to have personal connections with all employees and some of their families.

It is 4:30 pm which is almost quitting time for the afternoon shift. You have just been called out to the shipping and receiving area. It is chaos. A large shelving unit has collapsed and it is clear there is a worker trapped beneath it who will not survive. It is traumatic for everyone to watch.

Once the initial first medical response has been implemented the ministry of labour arrives on site to do an inspection of the accident. Everything else is in limbo and the night shift workers have been called to cancel their shift.

Here is where it gets really difficult.

As you walk back to your office you ask the HR department to get the employee’s home phone number. The employee’s file is given to you. Everything moves in slow motion, you can smell the dust coming off the file, you take the file and immediately feel a sharp stinging, you are not sure if it is your hand or your heart. It is like a message is being sent to you, this moment, this call, will change your life forever.

As the direct supervisor you have been given the task of making the call to inform the employee’s spouse that her husband will not be coming home tonight or ever again. You pick up the phone and dial the number. A small voice answers, it is the employee’s daughter who has just been picked up from kindergarten. You ask to speak to her mother.

You know that little girl’s life has been changed forever! She may never even remember the sound of her father’s voice, the touch of his hand. Your eyes well up as you take a deep breath. You have no idea what you are going to say next,

“Stephanie, there has been an accident ….,” nothing more has to be said.

Stephanie knows that the last time she saw her husband was over their morning coffee together, the ritual which they have had since they were married.

Click here to read about the Association of Workers’ Compensation Boards of Canada

Recently, Canadian Electrocoating Ltd. pleaded guilty to a violation of the Ontario Health and Safety Act and was fined $175,000. This fine in no way represents the true cost of an employee fatality at work. Emotions, sadness and despair: these are the true costs of a workplace fatality. Nothing will ever be the same to anyone who knew or worked with the employee who was killed in the workplace.

Click here to read an article about the fine

Every occupational health and safety act in Canada outlines the duties and responsibilities of employers, supervisors and workers. All of these acts are clear that the employer is responsible and must be diligent in ensuring worker safety. Unfortunately, all stake holders fail in their duties and responsibilities at least 1000 times per year in Canada, resulting in these tragic workplace fatalities.

If you are a planning on becoming a Human Resources, Health and Safety professional or a supervisor, you must ask yourself, do I know my duties and responsibilities?

Most importantly, you must ask yourself, what do I have to do to ensure a safe workplace so I never have to make that call?

Discussion Questions:

  1. You have been hired in a manufacturing company that has a poorly developed safety program. You have asked to meet with the stakeholders: management, supervisors and union members to discuss the current obstacles to health and safety improvements in the plant.
  2. What types of obstacles do you anticipate from each of the stakeholders?
  3. What kind of support do you need from each stakeholder in order to change the safety program?

Recruitment vs. Reality

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Wooden sign- Happily Ever After
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As a student in the Human Resources field, you have probably heard the analogy that the recruitment process is very similar to the rituals of courtship.  There is the initial interest; then the attraction; then the getting to know each other through some dating; and then, if all goes well, a long term commitment is formed by partners for life.

Recruitment follows a similar pattern.  There is the initial interest and attraction to a position with a particular company; then there are at least a few interviews to get to know what the mutual expectations are; and then, if all goes well, a long-term commitment is formed by the contract of employment between two partners.

In both processes, we may see or hear some things that we do not particularly like, but in the haze of mutual courtship, we may choose to ignore these things or hope that they might be minor details that will not get in the way of long-term commitment and mutual success.

Then, reality sets in.

In most cases, partnerships work through the annoyances together.  If, however, the things that we chose to ignore during the courtship and/or recruitment process become glaringly evident and turn into unsurmountable obstacles, the relationship will come to an unfortunate end.

As HR professionals, we can avoid the inevitable break-up of the employment relationship by ensuring that the recruitment process is focused on reality for both parties, before any commitments are made.

Anna-Lucia Mackay outlines the need for multi-step recruitment processes that are focused on facts and reality-checking.

Click Here to Read the Article.

The author provides us with a detailed end-to-end approach for successful recruitment, to help HR professionals and candidates ensure mutual compatibility before contracts are signed and the path to the future is set for everyone.

Discussion Questions:

  1. Identify three key indicators that behavioural interviews provide to the employer in a recruitment process.
  2. What types of questions should be asked of a candidate’s references to ensure fact-checking?
  3. How will you know you are getting the answers you need from a candidate’s references?
  4. What are three potential warning signs during a recruitment process that the HR professional should not ignore?