H&S Acts

The Deadliest Catch of All

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Tabor Chichakly/Shutterstock.

The start of lobster season, known as “Dumping Day,” is traditionally the last Monday in November. It’s the day fishers head out off the southern coast of Nova Scotia and set their traps for a potentially lucrative lobster haul.

It’s a way of life for many easterners, but it also comes with its inherent dangers out on the rough north Atlantic Ocean.

In 2015, a 53-year-old man died after going overboard in his vessel while setting traps, and in a separate incident, two other men went overboard doing the same thing, but were ultimately rescued.

It is always heartbreaking for the family, as well as the community, following a death of a worker.

Unfortunately, the sad reality is, it’s not unusual for fatalities to occur in the workplace in Canada.

According to a Globe and Mail report, the fishing industry is the deadliest sector of all occupations in Canada. It has almost 70 deaths per 100,000 workers (covering a period from 2011 to 2015), which is seven times higher than the fatality rates in construction.

This is unacceptable, and the fishing industry needs to take action to lower that rate.

Another article by the CBC sheds light on the discrepancy in workplace fatality statistics in Canada.

The Association of Workers’ Compensation Board of Canada has the official number at 1,000 deaths per year, but according to a study, the rate is much higher – almost 10,000 fatalities during that same time frame.

The lowball figure occurs because of the way that we collect statistics on workplace fatalities. Our reporting method is way too narrow and should be adjusted to reflect the real toll on workers lives.

What factors are affecting this under-reporting of fatalities in Canada? There are many factors, including:

  • Workplace fatalities where the worker is not covered by a provincial workers compensation system and therefore not counted
  • Fatalities occurring on farms may not be reported
  • Many deaths caused by vehicles may be categorized incorrectly.

HR and safety departments need to ensure that systems are in place that focus on safety prevention. They also need to make certain that their organization does not add one of their workers to the workplace fatality number.

Discussion Questions

What can industries due to help improve the collection of workplace fatality statistics?

What role should the federal and provincial governments play in reducing the number of workplace deaths in Canada?

 

To Test or Not to Test?

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With the upcoming legalization of marijuana in Canada, the increasing use of opioids, and the pervasive use of alcohol in our society, Canadian employers are intent on doing their due diligence to ensure workers are not impaired at work.

HR practitioners must keep abreast of changes happening in the Canadian employment-law arena. This is easier said than done—nothing is more confusing, or changing more rapidly, than rulings around the employer’s right to test employees for drugs and alcohol. Drug testing, workplace safety, and employee rights have been in at the centre of a number of legal battles for many years.

There are two competing principles in play in an ongoing legal battle between Suncor Energy and Unifor, the union that represents many of Suncor’s employees. Suncor believes it has a legal safety obligation to test employees for drugs and alcohol, saying that they have had 2200 safety incidents involving drugs and alcohol.

Suncor certainly does have a legal and moral duty to ensure the workplace is safe and free of hazards, including impaired employees. However, the union’s position, which is also valid, is that employees have the right to privacy, and that random drug testing violates that right.

Suncor won a September 2017 ruling that allows them to test employees for drugs and alcohol randomly.

Click here to learn more about the Suncor case.

However, in December 2017, just over two months after the ruling in Suncor’s favour, an Alberta Judge placed a temporary injunction preventing Suncor from carrying out random drug testingz

So, where do we stand on random drug testing in Canada now? It is very unclear. Currently, in Alberta, employers don’t seem to have the right to use random drug testing, even for safety-sensitive jobs. The story is different in Ontario, however, with the Ontario Superior Court ruling that random drug testing is legal.

Ontario Associate Chief Justice Frank Marrocco declared, in his decision concerning the Toronto Transit Commission, that, “public safety outweighs privacy concerns.”

Click here to read more about Chief Justice Marrocco’s decision.

So, there you have it, HR Professionals — there is no clear answer to the question concerning the conflict between rights of the employer   against the rights of the employee. What is the HR Professional to do, you ask? Stay aware, stay concerned, and keep up to date on employment court rulings.  These ruling can change rapidly.

 

Discussion Question:

Research policies in Canadian workplace and analyze them with respect to drug and alcohol testing. Is it a workplace requirement? When can the employer ask for drug/alcohol testing? Do any policies have a requirement for random drug and alcohol testing?

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.