OHS Due Diligence: Essentials of Taking … Due Diligence: Essentials of Taking Reasonable Care as a...
Transcript of OHS Due Diligence: Essentials of Taking … Due Diligence: Essentials of Taking Reasonable Care as a...
OHS Due Diligence:
Essentials of Taking Reasonable
Care as a Manager/Supervisor
Jeremy Warning
November 8, 2017
Agenda
1. Current Health and Safety Enforcement
Environment
2. Why Prosecutors Charge Managers and
Supervisors
3. Who is a “Supervisor” for OHS purposes?
4. Understanding Supervisory Due Diligence and All
Reasonable Care
5. Documenting Due Diligence
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Current OHS Enforcement Environment
• Over the last number of years, governments across
Canada have increased enforcers
• More Inspectors; more Prosecutors
• Result has been increased enforcement through:
Compliance orders
Stop work orders
Administrative penalties
Prosecutions
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Current OHS Enforcement Environment
Individual Liability Increasing
• Increased number of supervisors being prosecuted
• Fewer personal charges being withdrawn
• The potential for criminal negligence charges under
Criminal Code exists and supervisors are being
charged and convicted
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Current OHS Enforcement Environment
Penalties
• For more serious matters substantial fines are
available and are being imposed
• Fines are subject to a surcharge
• Jail terms being sought (and imposed):
R. v. Roofing Medics Ltd., 2013 ONCJ 646
R. v. New Mex Canada Inc., 2017 ONCJ 626
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Current OHS Enforcement Environment
Key Takeaways
• Unclear if custodial penalties will be used more
frequently by the courts to promote deterrence
regardless of record of defendant
• Is jail becoming less of a risk?
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Current OHS Enforcement Environment
Criminal Negligence
• Criminal Code duty (section 217.1) parallels OHS
regulatory provisions
• Criminal Code duty requires persons with authority
to direct how persons do work, to “take reasonable
steps to prevent bodily harm to that person or any
other person”
• Criminal Code charges can be advanced in addition
to any OHS charges
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Current OHS Enforcement Environment
Criminal Negligence
• Criminal negligence is proven by showing that
Criminal Code duty violated in a way that shows
“wanton or reckless disregard” for lives or safety of
others
• OHS regulations and requirements may establish
the reasonable steps one is expected to take to
protect against bodily harm in the workplace
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Current OHS Enforcement Environment
R. v. Kazenelson, 2015 ONSC 3639 (CanLII)
• Project Manager for Metron Construction, Ontario
• Convicted of 4 counts of criminal negligence causing
death and 1 charge of criminal negligence causing
bodily harm under Criminal Code
• 5 workers fell from 13th storey of apartment building
after swing stage failed when 7 men climbed aboard
• Only 2 lifelines on swing stage
• Sentenced to 3.5 years in jail
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Current OHS Enforcement Environment
Key Takeaways
• Health and safety legislation could identify
reasonable steps to be taken to protect health and
safety of workers
• General evidence of good and bad pre-incident
behaviour may be irrelevant
• One failure to act could constitute criminal
negligence
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Current Enforcement Environment
Reputational Risk
• Governments regularly issue news releases
following the conviction of organizations and/or
supervisors and managers under OHS legislation
• Releases name the supervisor/manager
• Supervisor/Manager may be named in press release
even if matter does not meet the usual criteria for a
press release
• Criminal negligence charges are frequently covered
by the media who will name the defendant
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Why Prosecutors Charge
The factors OHS Prosecutors consider in deciding to
charge a supervisor or manager:
• Seriousness of the breach Nature of breach
Actual and potential harm
• Culpability Relationship between breach and
supervisor/manager behaviour
• Deterrence Prior convictions and orders
Conduct or issue
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Who is a Supervisor?
• Need to consider applicable legislation and definition
of “supervisor”
• Definitions are, generally, similar and turn on control
over work or workplace
• Will often get a broad interpretation such that, on
Ontario, have seen individuals from lead hands to
company presidents or other senior officials found to
be supervisors
•
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Who is a Supervisor?
• Test is objective and based on the actual
responsibilities and powers of the individual
• “Hands on” authority
• Job or position title is irrelevant
• Personal view irrelevant
• OHS analysis will not necessarily follow collective
agreement or labour relations principles
• Risk does not just exist for persons on site
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What is Due Diligence?
• Due diligence, which comes from a 1978 Supreme
Court of Canada decision, is a legal standard which
allows the defendant a defence if stringent, court-
developed standards were met at the time of a
contravention
• Due diligence, the exercise of all reasonable care,
generally is comprised of those ongoing steps taken
to protect workers
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What is Due Diligence?
• The standard is strict and high but it is not one of perfection. It is not a standard of after the fact assessment of the “one more thing” that could have been done
• Question is: “was the care taken reasonable?”
• Ignorance of the law is not a defence
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What is Due Diligence?
Key Elements of Due Diligence for Supervisors
and Managers
• Knowledge of applicable laws and standards
• Corporate audits, inspections to assess hazards
• Ongoing correction of hazards
• Corporate safety policies and rules
• Ongoing supervision, worker training, knowledge of
standards, communication of hazards
• Ensuring, enforcing safety
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Knowledge of Legal Obligations
• Fundamental for anyone attempting to practice due
diligence strategies or to assert defence of all
reasonable care
• Means of ensuring knowledge through:
Access to applicable safety legislation
Training in OHS laws
Refresher training in OHS laws
“Competency”
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Knowledge of Workplace Hazards
• Courts expect not only knowledge of legal
requirements, but a system which takes all
reasonable steps to determine and assess potential
hazards to workers
• “Taking a step back” – looking at what could go
wrong and, of course, correcting it
• Forseeable hazards
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Knowledge of Workplace Hazards
• Examine quality of pre-job audits
• Perform documented assessments and inspections
when: Non-routine tasks are performed
Changes to work processes or practices occur
New subcontractors start work
New workers start work or a worker carries out a task new
to that worker
• The more detailed the inspection or audit list
(specific items relevant under regulations) to check
off, the better
• Encourage workers to report health and safety
concerns
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Procedures to Address Hazards
Developing and Implementing Procedures
• Courts expect that ongoing knowledge of workplace
hazards will be used to remedy defects in physical
equipment, work areas, and protective devices
• Courts expect development and implementation of
specific safety policies, practices, procedures, rules
• Courts expect that these will be understandable, up-
to-date and available to workers
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Procedures to Address Hazards
Developing and Implementing Procedures
• Best practices include:
Regular review of health and safety policy
manual – for self and workers
Familiarity with the procedures that apply to the
work you oversee
Review of relevant procedures with workers
when they are assigned to a new task (or ensure
someone has)
Signoffs on procedure or checklist
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Adequate Information and Instruction
• Supervisors and managers have a role in ensuring
workers are given adequate information and
instruction
• Supervisors and managers should:
Ensure workers have received necessary
information and instruction (training) when
assigned to specific work
Provide reinforcement of training through
reminders, re-training, safety meetings, etc.
Consider whether a worker’s deviation from
policies and procedures indicates a deficiency in
information and instruction
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Adequate Information and Instruction
Provide instruction on tasks even to very senior
and/or experienced workers
When giving information and instruction, remind
workers of the risks in the work and how they are
to be controlled
Tailor the information and instruction to the
specific circumstances
Assess the competency of workers
Document your activities and specifics relevant to
the job – training, crew meetings, toolbox talks –
and have access to proof of training
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Adequate Information and Instruction
Communication and Coordination
• Beyond training and toolbox talks
• Best practices include:
Communication to workers of relevant changes to
work processes, conditions, equipment,
substances, new risks on site
Coordination of work when multiple workers
/contractors working in same area (as needed)
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Adequate Information and Instruction
Communication and Coordination (cont’d)
Ensuring changes in tasks are communicated to
workers
Ensuring the affected workers have received the
information
Ensuring that there is coordination amongst
workers (both those working for your organization
and those working for contractors) so that their
activities do not endanger one another
Documentation of these steps
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Supervisory Monitoring
Supervisory monitoring should include:
Ensuring policies and procedures are understood
and followed
Direct monitoring and reminders – review for
quality and safety
Monitoring with appropriate frequency (increased
monitoring should accompany increased risk,
indication of compliance problems, unusual
complexity of task, new work location)
Proof – documentation such as checklists, forms,
specific details or reminders in notebooks
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Discipline for Safety
• All due diligence efforts can quickly unravel if
enforcement is absent or undocumented
• Courts want to see that procedures and rules are
enforced
• Courts may see absence of discipline as an absence
of commitment to health and safety
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Discipline for Safety
• As supervisors, use all of the tools and authority you
have to enforce rules
Training
Discipline (Escalating as appropriate)
Forms
• Document the discipline in some way
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Discipline for Safety
Finding the Appropriate Penalty: Be Creative
• Beyond warnings or suspensions think about:
Coaching employee
Re-training of employee in rules and requirements
Removal to other work pending re-training
Disciplinary demotion to other work for specified time frame
Using discipline as opportunity to send safety message through communications and safety meetings
Increasing supervisory monitoring of worker
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Importance of Documentation
Your Best Due Diligence Defence
• Creates written record of historical behaviour
• Captures details lessening dependence on memory
or individuals
• Proof of positive compliance efforts for use with
regulator or in OHS litigation, if necessary
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Importance of Documentation
Your Best Due Diligence Defence
• Documentation of all ongoing efforts
• Documentation of details – who, when, length,
content
• Documentation of all ongoing follow-up,
confirmation, efforts, reminders
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What Kind of Documentation Should be
Created?
Checklist For OHS Compliance Records Used or Created by Supervisors and Managers
Completed pre-job hazard assessments
Checks of training records, qualifications if relevant
Detailed records of safety meetings and discussions
Detailed records of supervisory monitoring (e.g. workplace audits, informal safety discussions and specific directions, corrective actions, etc.)
Notes, diary, daily checklist
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Avoiding Shortfalls in Documentation
Quality of Documentation
• Want useful documentation knowing that
organization, supervisor will be held to a strict
standard
• May need to rely on documents months or years
later, ensure they are clear, and retained for years
• Document may need to be understood by regulator
or court/ adjudicator
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Avoiding Shortfalls in Documentation
Quality of Documentation
• If use shorthand, make sure that it is
understandable and will be remembered
• If your handwriting is hard to read, take steps to
make sure it is more readable
• Include as much detail as possible with all records
– whether a form, checklist or your own
notes/records
• Ensure you include any remedial measures taken
that address health and safety concerns you have
documented
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Avoiding Shortfalls in Documentation
Appropriate Orientation and Training
• Proof of orientation and training – ensure detailed documentation of:
Content of orientation or training not just a card or signoff (including any on-the-job training)
Ideally name of trainer, all content, even if use external trainer
Length of orientation or training, copies of materials used or tests given
Any questions or absence of questions by trainee
Supervisory follow-up
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Avoiding Shortfalls in Documentation
Communication and Coordination
• Document communication of changes in the work or
problems (e.g. safety issue or equipment deficiency)
emails
meetings
work instructions
• Vary the nature of the documentation with the risks associated with the change(s)
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Avoiding Shortfalls in Documentation
Hazard Recognition and Correction
• Recorded audits looking for hazards in work (both
identified / controlled and new)
• Written job hazard analyses, pre-job or pre-work
inspections and meetings. Signoffs as appropriate
• Documented follow-up of taking corrective action(s)
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Avoiding Shortfalls in Documentation
Supervisory Monitoring
• Record activities including:
Policies and procedures understood and followed
Monitoring and reminders with appropriate frequency (increased monitoring with increased risk, indication of compliance problems, unusual complexity of task, new work location)
Absence of health and safety violations/concerns
• Use detailed checklists, forms or notebooks
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Avoiding Shortfalls in Documentation
Checklists, Forms and Notebooks
• May be very valuable resource
• Provide detailed records of positive conduct relating to health and safety – monitoring, hazard identification and resolution, enforcement, etc.
• Develop the habit of keeping (and retaining) a diary or notebook to document daily activities
• Don’t cut corners on checklists and forms
• Use notes to augment checklists and forms
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Avoiding Shortfalls in Documentation
• Avoid complacency
• Where possible, avoid using precedent
documentation (e.g. modifying a completed
document) unless it will be clear from the
documentation that attention has been paid to the
subject matter on the form
• When taking attendance at meetings, ensure
workers sign their own name
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