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SAFETY DUE DILIGENCE CANNOT BE “MADE UP” AFTER THE FACT

Due diligence is the level of judgement, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances.

As  a worker or even as a SUPERVISOR  ask your bosses f the following questions:

  1. Can a reasonable person predict or foresee something going wrong?
  2. How severe is the potential harm to workers?
  3. Is there an opportunity to prevent the injury or incident?
  4. Who is responsible for preventing the accident or incident?

Applied to occupational health and safety ( BASED UPON YOUR CURRENT AUTHORIZED SAFETY MANUAL), due diligence means that employers shall take all reasonable precautions, under the particular circumstances, to prevent injuries or accidents in the workplace. This duty also applies to situations that are not addressed elsewhere in the occupational health and safety legislation. Reasonable precautions are also referred to as reasonable care. It refers to the care, caution, or action a reasonable person is expected to take under similar circumstances.

Another term used is employers must do what is “reasonably practicable”.  Reasonably practicable has been described by legislation as taking precautions that are not only possible, but that are also suitable or rational, given the particular situation.  Determining what should be done is usually done on a case by case basis. Strict liability laws give you the opportunity to make rational decisions. You have the option of deciding if you do or do not proceed with a particular action depending upon the circumstances. Instead of complying with the specific rule presented in the law, you could do everything “reasonably practicable” and demonstrate “due diligence”. Due diligence is demonstrated by your actions before an incident occurs, not after the fact.

Health and Safety Management System must provide evidence assist an accused employer in meeting its due diligence requirements and should include, but not be limited to demonstrating:

  • That wokplace safety management is a priority at the workplace.
  • That all work place parties (employers, employees, managers, supervisors, directors, officers, etc.) understand their duties under the law and comply with them
  • That a workplace risk assessment has identified risks that are foreseeable in the workplace and that those risks are addressed through a properly functioning and documented health and safety management system
  • That written occupational health safety policies, of practices, procedures are established, implemented and enforced (establishing a health and safety manual)
  • That proper health and safety training courses and instruction on the existence of, and the requirements of, the policies, work practices and procedures is provided.
  • That routine observation and monitoring through workplace safety inspections are carried out to ensure that the policies, work practices, and procedures are being complied with.
  • That there existed a proper and functioning safety committee.
  • There are regular occupational health safety meetings.
  • The degree to which health and workplace safety rules are communicated to employees and enforced.
  • Whether any other employee had engaged in similar conduct previously
  • That workplace accidents and incidents are investigated through a proper accident investigation program and corrective actions are take to prevent reoccurrence of injury.
  • The company reviews its workplace safety procedures regularly.

To exercise due diligence, an employer must implement a plan to identify possible workplace hazards and carry out the appropriate corrective action to prevent accidents or injuries arising from these hazards. ZERO-injury achieving companies have to say about the attitudes, cultures, systems and practices they are using to achieve and move beyond ZERO disabling injuries. Your companies due diligence program must come as a general duty and as a legal defence. “You need to address both, understand them separately and think about how they fit together.” An unwritten, informal practice — no matter how brilliant — can’t save you from prosecution when it comes to that. What the judge would want to see is informal best practices translated into formal, written procedures, the associate professor said.  Often, the courts will require you to prove due diligence, related to the specific incident. Employers need to show proper due diligence on a specific offence. For example, if the charge is about failure to ensure that workers are using proper personal protective equipment, the employer must show specific due diligence on PPE training for workers.  The leading case on strict liability offences is the Supreme Court of Canada’s decision in R. v. Sault Ste. Marie (City). The Supreme Court found that offences under Ontario’s Occupational Health and Safety Act were strict liability offences, stating: “In this doctrine, it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair, as the alternative is absolute liability, which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.”

The burden of proof is placed on the employer. The employer must prove – on the balance of probabilities – that it took all reasonable steps to prevent similar incidents from happening. R. v. Canada Brick Ltd., Justice Hill, when considering Provincial Legislation Section 25(2)(h), stated: “An employer is not legally bound to provide the safest imaginable workplace. While it may strive to do so, what the Act requires is compliance with those regulations which shape a reasonably healthy and safe work environment. Certain minimally prescribed standards seek to prevent accidents on account of worker inadvertence. The employer owns and controls the workplace and is statutorily obligated to maintain the minimally reasonable level of safety described in the regulations.” Due diligence is the opposite of negligence. For example, an employer could be considered negligent if it was in breach of its duty to take “reasonable care” and an injury occurred as a result of the breach. “Reasonable care” means “to avoid acts or omissions in the workplace, reasonably foreseeable, that would cause injury.”  Simply hiring a “competent person” is not enough to prove due diligence. You have to have methods and systems in place to verify that they did the job that they’re supposed to do

Example: A road construction company operates a packer that has faulty brakes. The condition is observed and reported, but the brakes are not fixed. The company continues to use the packer. One day, the packer goes out of control on an incline. The operator jumps off, and the packer continues down the hill and strikes a truck, injuring the driver.  Did the company take reasonable care? No. It is not reasonable to operate a piece of heavy equipment without functioning brakes. In this case, the company, the foreman and the operator, all of whom had an opportunity to fix the equipment or prevent its use, could be charged and prosecuted. What are an employer’s duties?

An employer must ensure, as much as reasonably practicable, the health and safety of their own workers, and also that of any other worker present at the work site who could be affected by what they do or fail to do. How do you determine reasonableness?  Remember that, “If you can’t do it, don’t say you’re going to do it. If you say you’re going to do it, then watch yourself and ensure that you do it,”

Each case rests on its own facts. Factors that determine reasonableness in any given case include:

  • the knowledge and experience of the individuals involved
  • the nature of the work to be done
  • the likelihood and degree of potential harm
  • each person’s degree of control (ability to prevent the accident), and
  • whether there was a safer alternative.

 Practicability will depend on:

  • resources available — people, equipment, money.

  • feasibility — has the work ever been done before? And…

  • the urgency of the task.

Written documentation is essential. Records, reports and documentation for the following activities can include:

  • Worker orientation, education, and training.
  • Workplace inspections, including corrective actions taken.
  • Accident / Incident reports, including corrective actions taken.
  • Supervisor notes (e.g., supervisor inspections, meetings with workers or contractors regarding safety, etc.).
  • Health and safety committee meeting minutes.
  • Equipment log books and maintenance records.
  • Emergency response drills and exercises.
  • Instructions or safe work procedures, including any changes.
  • Forms and checklists used when following safe work procedures (e.g., confined space entry permits).
  • Sampling and monitoring records from exposure testing.
  • Statistics about the frequency and severity of injuries, etc.
  • Enforcement of health and safety rules and procedures.
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