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.
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.
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.
- 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.