OHS Due Diligence: Essentials of Taking Reasonable Care as a Manager/Supervisor. Jeremy Warning

Transcription

1 OHS Due Diligence: Essentials of Taking Reasonable Care as a Manager/Supervisor Jeremy Warning November 8, 2017

2 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 2

3 CURRENT HEALTH AND SAFETY ENFORCEMENT ENVIRONMENT IN CANADA 3

4 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 4

5 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Individual Liability Increasing Increased number of supervisors being prosecuted Fewer personal charges being withdrawn The potential for criminal negligence charges under Criminal Code exists and supervisors are being charged and convicted 5

6 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 6

7 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? 7

8 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 8

9 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 9

10 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 10

11 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 11

12 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 12

13 WHY OHS PROSECUTORS CHARGE MANAGERS AND SUPERVISORS 13

14 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 14

15 WHO IS A SUPERVISOR UNDER OHS LEGISLATION? 15

16 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 16

17 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 17

18 UNDERSTANDING DUE DILIGENCE FOR SUPERVISORS AND MANAGERS 18

19 WHAT IS DUE DILIGENCE 19

20 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, courtdeveloped 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 20

21 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 21

22 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 22

23 KNOWLEDGE OF LEGAL OBLIGATIONS 23

24 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 24

25 KNOWLEDGE OF WORKPLACE HAZARDS 25

26 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 26

27 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 27

28 DEVELOPING AND IMPLEMENTING PROCEDURES TO ADDRESS HAZARDS 28

29 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, upto-date and available to workers 29

30 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 30

31 ADEQUATE INFORMATION AND INSTRUCTION 31

32 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 32

33 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 33

34 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) 34

35 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 35

36 SUPERVISORY MONITORING 36

37 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 37

38 DISCIPLINE FOR SAFETY 38

39 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 39

40 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 40

41 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 41

42 THE IMPORTANCE OF DOCUMENTATION 42

43 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 43

44 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 44

45 WHAT KIND OF DOCUMENTATION SHOULD BE CREATED? 45

46 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 46

47 AVOIDING SHORTFALLS IN DOCUMENTATION 47

48 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 48

49 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 49

50 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 50

51 Avoiding Shortfalls in Documentation Communication and Coordination Document communication of changes in the work or problems (e.g. safety issue or equipment deficiency) s meetings work instructions Vary the nature of the documentation with the risks associated with the change(s) 51

52 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) 52

53 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 53

54 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 54

55 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 55

56 Questions? Jeremy Warning, Partner T jwarning@mathewsdinsdale.com North America: Canada - Mexico - United States Central & South America: Argentina - Brazil - Chile - Colombia - Panama - Peru - Venezuela Western Europe: Austria - Belgium - Cyprus - Denmark - Finland - France - Germany - Greece - Ireland - Italy Luxembourg - Netherlands - Norway - Portugal - Spain - Sweden - Switzerland - United Kingdom Eastern Europe: Belarus - Czech Republic - Estonia - Hungary - Latvia - Lithuania - Poland - Romania - Russia - Slovakia - Turkey - Ukraine Middle East & Asia Pacific: China - India - Israel - Japan - Korea, Republic of - New Zealand - Singapore - United Arab Emirates mathewsdinsdale.com iuslaboris.com