If you think the amount of time you’ve been at your job protects you if you choose to be unsafe at work, a recent arbitration case in Ontario should put that notion to rest.

The worker in question had worked 37 years for a lead recycler. Lead recyclers have very strict safety rules to follow as employers, according to the Ontario Occupational Health and Safety Act, including requiring the use of respirators and to monitor all workers for lead exposure.

According to the mediator, the employee had been written up seven times over the last year of his employment, most for safety violations. At the time the employer had decided to let their long-time worker go, they had to write him up twice in two days. The first time, the worker had chosen to work in the plant without a hard hat, safety glasses and mask. The very next day, he was caught working in the plant without a  respirator, and he wasn’t clean shaven for an effective mask seal. These two incidents came less than a month after the worker had been given a written warning and counselling for much the same type of health and safety violations, and just over four months after he had served a 25-day suspension for repeated violations over a six week period.

The arbitrator cited the fact that the worker had not “fully acknowledge(d) or accept(ed) responsibility for his misconduct on either April 30 or May 1, 2012. The company has reasonably concluded that its efforts to rehabilitate the grievor have been fruitless, and that it can no longer tolerate his presence in the workplace.”

In his decision, the arbitrator noted that the worker’s continuing safety violations, and the lack of a meaningful apology, are more meaningful than his many years of service. He noted that “workplace health and safety is a serious matter. … arbitrators (must) take the mutual responsibility of employers, unions, and employees to ensure workplace health and safety is very seriously . . . Lengthy service by itself has less mitigation currency in health and safety misconduct cases than it has in other kinds of cases.”

No matter how long you’ve worked at your job, safety is always an important concern.

If you think the amount of time you’ve been at your job protects you if you choose to be unsafe at work, a recent arbitration case in Ontario should put that notion to rest.

The worker in question had worked 37 years for a lead recycler. Lead recyclers have very strict safety rules to follow as employers, according to the Ontario Occupational Health and Safety Act, including requiring the use of respirators and to monitor all workers for lead exposure.

According to the mediator, the employee had been written up seven times over the last year of his employment, most for safety violations. At the time the employer had decided to let their long-time worker go, they had to write him up twice in two days. The first time, the worker had chosen to work in the plant without a hard hat, safety glasses and mask. The very next day, he was caught working in the plant without a  respirator, and he wasn’t clean shaven for an effective mask seal. These two incidents came less than a month after the worker had been given a written warning and counselling for much the same type of health and safety violations, and just over four months after he had served a 25-day suspension for repeated violations over a six week period.

The arbitrator cited the fact that the worker had not “fully acknowledge(d) or accept(ed) responsibility for his misconduct on either April 30 or May 1, 2012. The company has reasonably concluded that its efforts to rehabilitate the grievor have been fruitless, and that it can no longer tolerate his presence in the workplace.”

In his decision, the arbitrator noted that the worker’s continuing safety violations, and the lack of a meaningful apology, are more meaningful than his many years of service. He noted that “workplace health and safety is a serious matter. … arbitrators (must) take the mutual responsibility of employers, unions, and employees to ensure workplace health and safety is very seriously . . . Lengthy service by itself has less mitigation currency in health and safety misconduct cases than it has in other kinds of cases.”

No matter how long you’ve worked at your job, safety is always an important concern.

Documentation is the key element to prove your case!

Late in the afternoon of March 23, a worker was taking down a pillar at the construction site of the Rideau Centre shopping mall expansion in downtown Ottawa, when the pillar broke apart and fell through to the floor below. That caused a wall to collapse in the process.  Thankfully, even though 11 demolition workers were on the scene, no injuries were reported.  Because bricks from the wall were pushed out into the walkway, police were forced to shut down part of the roads and sidewalk around the collapse for a time, as well.

As a result of the partial collapse, the Ministry of Labour and the developer ordered assessments of the structural integrity of the building. As a result of those assessments, city officials have called for a faster demolition process. Previously, the demolition had been complicated by the fact that part of the building, the former Ogilvy Department Store, had been designated a “heritage building” by the city. But the reports on the assessment recommended that the century-old building just be demolished as soon as possible and city officials accepted that recommendation.

After the collapse, the Ontario Ministry of Labour issued a stop-work order on the entire project until the investigations were complete. Now, according to the MoL, they will begin a  transition from “a controlled, selective demolition – which is a little more precise, and to move to a harder demolition, which is to just bring the building down a little bit faster.”

A recent court case should allow employers to heave a sigh of relief. The Ontario Court of Appeal (OCA) has overturned an Ontario Divisional Court decision in Blue Mountain Resorts Limited v. Ontario,in which they had ruled that an employer’s duty to report all workplace injuries, as required under the Occupational Health and Safety Act (OHSA), extended to people who weren’t actually workers.

In December 2007, a guest of the Blue Mountain Ski Resort drowned in an unattended swimming pool. Blue Mountain officials didn’t report the incident to the Ministry of Labour, because it did not involve a worker. Ministry officials ordered them to do so, anyway, and declared that the entire resort – all 750 acres of it – was considered a “workplace,” requiring Blue Mountain to report every incident in which anyone was killed or injured.

The Divisional Court agreed with the Ministry of Labour, ruling that the employers’ duty under the OHSA was to report all fatal and critical injuries at any workplace, even when those injured were not workers. Their reasoning was that sometimes, members of the public are subject to the same hazards or risks as workers.

But the Justice Robert Blair of the OCA disagreed with that view:

“The interpretations (the Divisional Court and OLRB) gave to s. 51(1) of the OHSA would make virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place. This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported. Such an interpretation goes well beyond the proper reach of the Act and the reviewing role of the Ministry reasonably necessary to advance the admittedly important objective of protecting the health and safety of workers in the workplace. It is therefore unreasonable and cannot stand.”

So, the way things stand now, an incident does not have to be reported unless there is a reasonable relationship between the  hazard that caused the death and “a realistic risk to worker safety at that site.”

An Ontario appeal judge recently ruled that the province’s Occupational Health and Safety Actdoes not require that workers be continuously supervised at all times, so failure to do so does not automatically mean the employer has violated the act.

The ruling stemmed from a case involving an accident where an 18-year-old worker at a company that washes cars for auctions drove a vehicle into a wash bay in a way that caused two other cars to collide, and injuring a co-worker.

The worker who caused the accident had been told more than once by a manager that he was not allowed to drive the cars. Additionally, the worker admitted that he was aware of the company’s safety policy, which stated clearly, “To drive a vehicle on the property you must have a valid driver’s license.” The worker did not have a license.

The worker admitted that he drove the car into the bay “in the heat of the moment.” There were no supervisors in the wash bay at the time of the accident, and all of the other workers were away from the area on a break.

The justice of the peace in the original trial had ruled that supervision of the worker was inadequate, and that he should not have been allowed to work unsupervised. Because everyone was on break, and the worker had been able to “circumvent this observation and supervision and drive the motor vehicle,” the system failed, according to original ruling.

The appeal judge, however, disagreed with that assessment, and held that the Occupational Health and Safety Actdid not contain a requirement that every worker be supervised at all times. The worker’s job description did not include driving, and in fact, he was also aware of the company rule against driving without a license, there was no requirement that the company provide him with “information, instruction or supervision” in safe operation or parking of the vehicle.

Since the appeal was allowed, the Occupational Health and Safety Act charges against the company, of failing to instruct and supervise, and failing to ensure that the worker had a valid driver’s license, were therefore dismissed.

Read the case here: R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre),

It’s not only companies that should be concerned about the negative effects of ignoring safe working practices on their bottom line. Supervisors who don’t follow the rules also have a lot to lose.

Take, for example, the recent case in the Ontario Court of Justice in which an Uxbridge, Ontario construction company president was fined $30,000 for violations of the Occupational Health and Safety Act for his part in an accident in which a worker was killed. The fines weren’t based on his position as company president, but on his role as project supervisor.

The incident that led to the hefty fine occurred on December 15, 2009, as his construction company, 474294 Ontario Limited, carrying on business as Northern Machinery Services, was replacing a bridge on the Queen Elizabeth Way over Bronte Creek in Oakville. Company president Barry Wood, was supervising the project. As workers started to remove the concrete deck of the existing bridge, a section of the deck began to collapse. A worker fell and a concrete panel fell on top of him and killed him.

The Ministry of Labour investigation of the accident found that Mr. Wood had been provided with a copy of an engineered procedure for safely cutting and removing concrete from the bridge deck in order to maintain its structural integrity and prevent collapse, but that the procedure hadn’t been followed. To make matters worse, the workers involved in the project were not wearing fall protection at the time of the accident.

Wood pleaded guilty to failing, as a supervisor, to take the reasonable precaution of ensuring that workers engaged in the cutting and removal of the bridge deck followed the engineered procedure for that task. He also pleaded guilty to failing, as a supervisor, to ensure that workers exposed to a fall hazard were wearing fall protection. He was fined $20,000 for the first violation and $10,000 for the second. In addition to those fines, Wood also had to pay the court-imposed 25% victim fine surcharge, as required by the Provincial Offences Act. That’s a total of $37,500 in personal penalties.

This fine is significant, since at least one recent study found that more than 50% of OH&S charges against individuals are withdrawn by the Ministry of Labour. That said, the ministry is less likely to withdraw them in cases where a supervisor was given information regarding proper safety procedures and simply didn’t follow it.

Picture Courtesy: National Post

It was all over the news. A tragic scaffolding accident that occurred on Christmas Eve, 2009, and took the lives of four migrant workers and severely injured another. Finally, there’s been a partial resolution, but not everyone is happy about it.

On Friday, June 13, the Ontario Court of Justice, Metron Construction Corporation pleaded guilty to criminal negligence resulting in death and were hit with a $200,000 fine.  The amount of the fine, combined with the $50,000 victim fine surcharge, is not only the largest criminal fine for corporate negligence in Canadian history, but it’s also double the previous largest fine in Ontario since Bill C45 amended the criminal code in 2004. It also marks the first corporate guilty plea in Ontario history.  In addition to the fine against the company, Metron’s president, Joel Swartz, was also hit with a $90,000 fine after he pleaded guilty to four charges under the Occupational Health and Safety Act (OHSA). That fine constitutes the highest fine ever imposed against an individual convicted of an offence under the OHSA.

Yet, while the fines were the biggest ever, the Ontario Federation of Labour (OFL) says it is not enough.

“This is a disgraceful ruling,” said Sid Ryan, president of the OFL, as he stood on the steps of Toronto’s Old City hall after the ruling. “It means that in this province, a life is worth $50,000.” The OFL fears that, at that level of fine some companies will simply write such accidents off as the cost of doing business. The Crown had originally proposed a $1 million fine, and OFL officials suggested that, if the Crown doubted the company’s ability to pay, perhaps Swartz should spend some time in jail.

The Christmas Eve 2009 accident came as six migrant workers were renovating a building from a suspended work platform at a construction project on Kipling Ave in Toronto. All six workers were working from the swing stage, which was rated for a  maximum of two workers or 450 kg by the manufacturer. When a seventh worker attempted to join them, the stage split in the middle, and collapsed, causing five workers to plummet 13 storeys, killing four and seriously injuring another. The sixth worker was the only one not seriously injured, most likely because he was the only worker properly using fall protection, so he was held in place by the lifeline and eventually pulled to safety.

The Ontario Ministry of Labour investigation found that the deceased and injured workers had not been trained in the proper use of fall protection and had not been properly tied off to a lifeline. To make matters worse, the MoL also determined that the swing stage had been overloaded, although they also found that Ottawa-based rental company Swing ‘N’ Scaff had not only provided the platform, they had built the stage themselves, and that the stage had not been properly constructed and arrived without any manual, instructions or product information, so the scaffolding itself was potentially hazardous.

For his part, Joel Swartz pleaded guilty to failing, as a director, to take all reasonable care to ensure that workers did not use a defective or hazardous swing stage; that the swing stage was not loaded beyond the capacity limits set out by the manufacturer; that workers were adequately trained in the use of fall protection by a competent person and; that the company prepared and maintained written training and instruction records for each worker.

Several facts that were heard by the court are thought to have influenced the decision to reduce the fines, including that Metron had taken the several steps “inconsistent with wanton and reckless disregard for the lives and safety of the workers on the project,”  including their cooperation and compliance with all requests from the Ministry of Labour inspector; arranging for the project manager and the site supervisor, as well as several workers, take training courses on the safe and proper use of suspended platforms, as well as fall arrest training.

There are still other defendants facing charges as a result of this incident, according to the Ministry of Labour, so there could still be more fines coming.

The Ontario Ministry of Labour (MoL) wants everyone to know it’s serious about workplace safety, so it will be blitzing well into next year, so it would be wise to spend some time preparing to host an MoL inspector at some point.

As we told you previously, the (MoL) launched a summer safety blitz on May 1, targeting the construction and industrial sectors with a focus on hazards and risks of injury to new or young workers who lack experience. That blitz is ongoing, and will continue through August. They are also in the midst of a Struck by Objects Blitz, which focuses on hazards associated with traffic control during roadwork, which began on June 1, 2012, and will run through the end of the month.

But that was only the beginning.

The MoL will continue blitzing workplaces in July and August, when inspectors conduct a Tower and Mobile Crane Blitz, which will target hoisting hazards. Also in the month of July, the MOL will conduct a Pits and Quarries Blitz, which will  focus on hazards associated with haulage.

In September and October, the MoL will conduct a blitz they call “Supervisory Engagement in Construction,” when they will examine construction companies’ practices with regard to meeting supervisory responsibilities. During that blitz, they will also make sure employers are meeting all training and requirements spelled out under Section 14 Reg. 213/91.

In October and November, inspectors will conduct a blitz examining issues with machine guarding, Material Safety Data and workplace violence in the manufacturing sector. November through February 2013 will feature a safety blitz in the underground mining sector, specifically examining the hazards associated with ore pass and loading pocket systems, and ventilation hazards. February and March 2013 will feature a Slips, Trips and Falls blitz in the industrial and construction sectors, focusing on ladder safety and fall protection systems.

Recently, the Ministry of Labour released the results of its February 2012 Musculoskeletal Blitz. In less than 30 days, inspectors examined more than1,700 workplaces across the construction, healthcare, industrial and mining sectors, and issued just under 5,000 orders overall, including more than 300 stop work orders.  Based on the thoroughness of that blitz and the results they obtained, you can expect the upcoming blitzes to be very comprehensive and thorough, so you might want to prepare now.

The Ontario Ministry of Labour (MoL) is in the process of distributing free workplace posters titled “Health & Safety at Work – Prevention Starts Here” in English, French and 15 other languages to employers all over the province.  According to Ontario’s Occupational Health and Safety Act, those employers who receive the poster will be required to post it in their workplaces immediately. The MOL has said that its inspectors will “begin enforcing the requirement” on October 1, 2012.

Employers who would rather not wait have the option to download and print the poster from the MoL’s website here.  The poster can be printed in black and white or colour and must be posted in print size of at least 8.5 by 11 inches

The poster summarizes workers’ health and safety rights and responsibilities, as well as the responsibilities of their employers and supervisors. It also reminds employers they are forbidden from taking action against workers for following the act or raising workplace health and safety concerns, and seeking enforcement of the OHSA. It also encourages workers to get involved in health and safety and explains when and why to contact the Ministry of Labour.

The poster was created after an expert advisory panel appointed in 2010 found many workers had little or no understanding of the Act, and advised that a health and safety poster be made available in multiple languages.

Any Ontario employers who are considering not putting up the poster yet should know that MoL inspectors will look for it when they arrive at workplaces. By putting up the poster, employers  can show that they are on keeping on top of health and safety law developments.

Throughout Canada, North American Occupational Safety and Health (NAOSH) Week, which this year runs from May 6-12, will feature a number of events and activities coordinated by local, provincial and/or regional committees who share a focus and vision of safer workplaces and communities.

An outgrowth of the negotiations that led to the North American Free Trade Agreement (NAFTA), NAOSH Week was first launched in June 1997. It actually represented an expansion of the Canadian Occupational Health and Safety Week (COHS), which Canadians had been observing since 1986.  Since its inception, NAOSH Week has enjoyed exponential growth, and is now considered one of the most important safety initiatives throughout North America. This year’s theme is: Safety & Health: A Commitment for Life! Making it Work.

NAOSH Week represents the hard work of a number of safety partners, including the various agencies responsible for workplace health and safety, as well as the Canadian Society of Safety Engineering, the Canadian Centre for Occupational Health and Safety (CCOHS), Human Resources and Social Development Canada’s (HRSDC) Labour Program, the American Society of Safety Engineers (ASSE), and Threads of Life.