Strategic Solutions for the Evolving Workplace Newsletter
In this issue:
Interviewing
Selection Process
Strategic Solutions for the Evolving Workplace
This news letter provides general information only. This publication is written for informational purposes only
and should NOT be relied upon as legal advice or opinion
With benefits now averaging as much as 30% of total compensation it is absolutely imperative that you control your benefit costs. A variety of alternatives and cost cutting actions to lower your costs can be taken but one of the simplest is ensure you are not being over billed for the services provided by the carrier. There are a number of ways to ensure accurate pricing and utilization rates which ultimately affects the cost of group insurance plans and your bottom line.
First and foremost stay informed. Monthly utilization reports from the claims system can be requested. Check the validity of all claims figures that come from the insurer, including usage billing, renewal rating, and year-end financial projections.
Be aware of your company’s pooling limits. Request a quarterly or annual listing of all pooled claims for each account. Review and compare your monthly and annual paid claims listings to identify claims that may fall within the pooling limit.
Insurance providers are seldom perfect. If claims are underpaid; the insurer should re-evaluate the claim and notify employees of the error and the corrected amounts. If a claim is overpaid; ask the carrier to refund you the difference, including the administrative charges. In either case it should be done without incurring additional administrative costs or requiring repayment from employees. Ensure the above is included at the beginning of any written services agreement.
If you are working with your carrier based on an administrative services-only plans, check that the total paid claims figure matches the claims amount shown in your billing statement. There are sometimes valid reasons for differences. Ask your insurer to explain any variations.
Finally, and possibly the most difficult to get your provider to agree to is: request a guarantee. Checking the accuracy of claims payments from the insurer’s system, and a full audit is time-is almost impossible for you to complete not to mention labour intensive and costly.
Following these few simple suggestions and administering your claims can prevent missing costly and time-consuming errors.
The return on investment from adding a new position to your organization can be projected based on dollar amounts assigned to the various activities and outcomes resulting from that new hire.
The first step is to assign dollar values for the appropriate calendar period to the benefits you expect to receive by adding this position. You must determine the period of time most appropriate for this position and your organization. It might be a month, a quarter or a year. Which means, you need to calculate numerical answers to the following questions:
· What types of continuous improvement ideas including productivity, quality, and customer service will this position generate in dollar terms?
· Over the period of time, how much value added or income will this position create for your company?
· Over the period of time, how much added efficiency will this position create for your company?
Add all of the above estimated amounts and it will give you the increased revenue generated should you add this position..
Next consider the cost of recruiting, screening, and hiring the person and the associated costs including: advertising, internal recruitment programs, training, pre-employment testing as well as hidden costs such as lost productivity during the learning curve process.
· Number of advertisements multiplied by the price per ad equals your advertising cost. There are costs related to the internal recruitment process including hours/productivity, employee satisfaction relating to successful and unsuccessful candidates. The costs of backfilling any subsequent vacancies.
· Number of hours it will take to recruit, screen, and test applicants multiplied by the hourly compensation of all the individuals involved in the recruiting and screening process yields your administrative cost. Of other considerations are any pre-placement medical costs.
· Any costs associated to meet with the applicant, including travel, room rental and related expenses multiplied by the number of candidates you expect to meet for interviews equals your meeting costs.
· Your average interview time multiplied by the number of candidates equals your interviewing costs.
· Any cost s involved in relocating the new employee and family gives you your relocation costs.
· Number of hours a new employees spends in training multiplied by that person's hourly compensation equals your training costs.
· The estimated time it will take to recruit, hire, and train the new employee multiplied by compensation, including benefits for this new position gives your lost productivity costs.
The sum of these costs is your cost of hiring. Considering the cost of hiring and the annual compensation creates the initial cost for the new position.
The financial impact of adding the new position is determined by comparing your initial investment with the value added to your company.
First analyze the job and get input from others to clarify tasks, traits, and style required. Managers have the clearest sense of which employees are the “Right fit” for an organization, your managers need to spend time identifying the critical success factors for a position, preparing for and assisting in conducting thorough interviews, evaluating and comparing the candidates..
Prepare for your interview questions. It is wise to use a scoring scheme with your questions for later comparison of candidates.
First create set questions to make determine if the candidate has the skills and style you are looking for. Ask behaviorally based interview questions, more on questions next month, about candidates' past experiences. It is essential for later comparison to ask all candidates the same question.
Secondly along with the questions make sure you are using appropriate testing and assessment tools for the position. Additionally, you want to involve multiple interviewers to get diverse perspectives about each candidate. Managers are the appropriate people to include not only because they have direct knowledge of the KSAs required for the position but if they’re included you will definitely have buy in on the hiring decision.
Sell the candidate on the position; he may be deciding between 3 or 4 job offers. Ask the candidates what would entice them enough to take your job vs. that of key competitors; make sure you are meeting their needs as well. Think about your team or organizational "wow" factors--those things that differentiate you from all others. It might be your Friday afternoon off policy or your ultra-creative environment or fun-filled atmosphere
If you get the right people in the right roles in your organization, you will absolutely increase the odds of retaining them in the future.
An article wrote for the Human Resource Professionals Association of Ontario: Trends and Legal Implications in Hiring Practices: Screening Mechanisms by: Christina Catenacci LL.B. and Yosie Saint-Cyr LL.B., for HRinfodesk - Canadian Payroll and Employment Law News, 2006, reviews Stats Can research and the various types of selection processes.
In order to remain effective and competitive, it is useful for employers to learn the type of screening mechanisms that are used by other employers across
The WES was given to 11.7 million employees in 2001 to determine the types of screening they had undergone when they were first hired by their employer. Approximately 2.6 million were not screened at all. The remaining 9.1 million reported at least one type of screening. The most common type of screening was the personal interview; other screening types were medical examinations, skill-specific tests, and security checks.
The following table outlines the types of screening mechanisms and their corresponding incidences:
Type of Screening | Incidence |
Personal Interview | 95.8% |
Medical examination | 15.5% |
Skill-Specific Test | 12.4% |
Security Check | 10.4% |
Aptitude Test | 10% |
Job-Related Knowledge Test | 9% |
General Knowledge Test | 5% |
Drug Test | 2.2% |
Other Tests and Screening | 2% |
Recruitment Agency Administered Test | 1% |
The three non-knowledge based screening tests were examined closely in the study. These tests included medical examinations, security checks, and drug tests. This article provides an overview of the results found in the study regarding the three non-knowledge based screening tests, including the legal implications for employers when implementing such screening mechanisms.
Medical Examinations (Independent Medical Evaluations, IME)
Since manufacturing and other physically demanding jobs have decreased, the use of medical examinations has declined. Also, with improved and safer machinery, certain jobs in manufacturing, construction, and other primary industries have no longer required the same physical demands, reducing the need for medical examinations.
Medical examinations were most common in industries such as communications and other utilities (29%), education and health (27%), and primary and secondary manufacturing (25% each). They were least common in business services (4%). Occupations that dealt more with medical examinations included professionals and physically demanding production, technical, and trades jobs. Larger workplaces with 500 or more employees also experienced more medical examinations.
Legal Implications
The law is complex and still evolving in this area. In developing a policy with respect to IMEs, an employer should consider:
A request for a medical evaluation can only be made after a job offer has been extended to the candidate. The job offer can be made conditional on a successful medical clearance.
The assessment should focus on the candidate's ability to perform the essential requirements of the job at the time of the offer without risk of injury to the employee. Speculation over how certain conditions might impact performance is not permitted and constitutes a form of discrimination on the basis of perceived disability. Similarly, an employee's inability to perform some minor aspects of the job cannot prevent a job offer being made.
An employer must be willing to accommodate the employee's illness or disability up to the point of “undue hardship”. After accommodation, the employee must be able to perform the essential tasks or duties of the position. For example, a receptionist might need a wider access to her desk in order to come to work in a wheelchair. The employer cannot refuse to undertake such changes.
If an employee is seeking sick leave, disability or other paid or unpaid leave due to illness, an employer has the right to insist on medical disclosure to assess the employee's claim.
Employers should separate medical information from the employee's personnel file in order to prevent inadvertent disclosure. Medical information must be kept on a strict “need to know” basis.
Security Tests
Although medical tests have decreased recently, security tests have increased. Security checks were most common in industries such as communications and other utilities (30%), educational and health services (24%), and finance and insurance (19%). They were least common in retail trade and consumer services (7%). Security checks were also more common in professional, marketing and sales, and technical and trades professions. Larger workplaces with 500 or more employees also experienced more security checks.
Legal Implications
A security check is a highly confidential investigation into a candidate's record of crime or child abuse. It involves a criminal records check or a child abuse registry check conducted before appointing a candidate to a designated position. A security check supplements the reference check. It is needed to assess the reliability and fitness of a candidate for appointment.
An employer that performs security checks on prospective employees (as part of a job selection process) must be able to establish that there is a need and bona fide reason(s) for doing so. Employers must ensure that processes are in place to screen participants and to conduct security checks if the type of placement warrants it. Such checks must be clearly related to employment and be a condition of employment. The application form and/or conditional offer of employment must clearly state that the security check is necessary because of the position sought.
A security check may be appropriate for employees who handle cash or the companies' assets, confidential and sensitive information, or develop and maintain information systems. They may also be appropriate for individuals who interact with vulnerable persons or children.
The employment notice advises potential applicants that appointment is subject to a security check. A request for security check can only be made after a job offer has been extended to the candidate. During the selection process candidates will be required to complete a written consent form to conduct a security investigation. Candidates may also be asked to complete a self-disclosure form. The letter of offer may also advise a candidate the appointment is conditional on a security check.
Employers are responsible for administering this Policy in a manner that protects candidates' privacy rights by minimizing the number of persons who handle the confidential information obtained. Accordingly, details of the security check are not placed in the competition file or on the employee's personnel file. These files only include a confirmation that a security check was conducted.
A criminal record is not, in itself, a barrier to appointment. If a qualified candidate has a criminal record, the selection committee or the employer must weigh the nature, time and extent of the record to assess if the candidate is suitable relative to the selection criteria.
Failure to disclose a criminal record on the self-disclosure form may not necessarily exclude a candidate from further consideration. The candidate is responsible for disproving a record that is inconsistent with the candidate's self-disclosure.
When the selection committee or the employer decides a candidate is unsuitable for appointment on the basis of a security check, the candidate must be informed in writing.
Drug Tests
Compared with medical examinations (10.8%) and security checks (11.5%), drug tests are the lowest form of screening test (2.2%). However, drug tests have been used more recently, particularly for primary product manufacturing industries (9.0%), and technical and trades positions (3.2%). These tests are also found more often in larger workplaces. In recent years, 1 in 50 employees were required to undergo a drug test.
Legal Implications
The courts have clarified the law regarding random drug and alcohol testing policies in the workplace, however, the law is complex and still evolving in this area. Drug and alcohol testing is discriminatory in theory because drug and alcohol addiction is considered to be a “handicap” under human rights legislation. Also, the courts state that someone who is perceived to abuse drugs or alcohol constitutes a handicap. Although it may become an issue in its application depending on the circumstances, the court has found that alcohol testing does not usually violate human rights legislation, while random drug testing does.
Drug testing violates the human rights legislative prohibition against discrimination on the basis of disability, because drug testing fails to indicate whether an individual is impaired and clearly unable to perform one's work. The test merely shows the presence of drugs in the body-drugs that may have been taken as early as two or more days before the test. This form of testing is intrusive because it also intrudes on an employee's privacy by providing the employer with additional (and confidential) health information about the employee. In contrast, alcohol testing was determined to be an acceptable practice because employers can accurately measure an employee's present state of impairment by measuring the blood alcohol level with a reliable test such as a Breathalyser without acquiring additional health information that could be detrimental to the employee.
Workplace rules and policies that make a distinction (direct or indirect discrimination) on the basis of handicap may be allowed if they are bona fide occupational requirements (absolutely required to perform the essential duties of the job), and only if they comply with the duty to accommodate up to the point of “undue hardship”. Duty to accommodate must be included in workplace rule and standards.
Post-incident and reasonable cause testing can be justified, but only if deemed necessary as a facet of a larger assessment of drug abuse. Where mandatory disclosure of past abuse was concerned (i.e., reassignment and reinstatement), the courts are of the view that mandatory disclosure was not reasonably necessary.
This decision enhances the position that an alcohol testing policy can be implemented where reasonable and justifiable job requirements exist-such as in situations where impairment renders an employee unable to perform the essential duties of the job as in the case of an airline pilot or train operator. Keep in mind that because drug and alcohol addiction are considered a handicap under human rights legislation, efforts must be made to accommodate the particular needs of the employee to the point of “undue hardship”. A policy must not be too broad; it must pay sufficient attention to the individual circumstances of those affected by the policy. Blanket policies are ineffective because accommodation is by its very nature an individual issue that must take into account each employee's and/or alternatives that might be available.
A request for alcohol or drug testing if reasonable and justifiable job requirements exist can only be made after a job offer has been extended to the candidate. During the selection process candidates will be required to complete a written consent form to conduct such alcohol or drug testing. Candidates may also be asked to complete a self-disclosure form. The letter of offer may also advise a candidate the appointment is conditional on an alcohol or drug test.
Other Trends
There were no significant differences found regarding the use of the three non-knowledge based tests by sex or age. However, new hires aged 45 to 54 were more likely to have to take a medical examination, whereas those aged 25-44 were more likely to be given a drug test.
Of the three tests, chances of employees being asked to undergo more than one of the tests were low. Only 1% had to do all three tests, and 4% were asked to complete two tests, usually medical and security.
Between 1991 and 1996 immigrants counted for 71% of the labour force growth in
Christina Catenacci, B.A., LL.B., is the content editor for The Human Resources Advisor (HRA),
Published on HRinfodesk---Canadian Payroll and Employment Law News and Developments
There is a link between employee theft and employee attitude. The less engaged a person is, the more they are apt to see the company as a non-personal thing, and the more apt they are to take something. What easier way to catch them than video surveillance but wait it may not be that simple.
A study sponsored by the federal privacy commissioner and written by Toronto's Ryerson University titled “Under the Radar” to learn more about privacy in the workplace, suggests that Canadian employers in a wide range of industries have the ability to, and do conduct surveillance of employees at work.
Dr. Avner Levin of the Faculty of Business is the lead author of “Under the Radar”, and said, “Employees don't want to feel like somebody is watching their every move, and the employers we talked to recognized that surveillance undermines trust in the employment relationship… The key is for employers to collect information in a reasonable way while preserving the dignity of employees.”
Currently, employers and employees are often subject to privacy laws. The Privacy Act, for example, applies to employee information in federal government institutions. The Personal Information Protection and Electronic Documents Act applies to employee information in federal works, undertakings, and businesses. Several provinces such as
Employers can balance their "need to know" with their employees' right to privacy if they ensure that they collect, use, and disclose personal information about their employees for appropriate purposes only.
For almost all personal information - including pay and benefit records, formal and informal personnel files, video or audio tapes, and records of web-browsing, electronic mail, and keystrokes - the following basic rules help to establish and maintain that balance:
Employers should say what personal information it collects from employees, why it collects it, and what it does with it.
Normally, collection, use, or disclosure of personal information should only be performed with an employee's knowledge and consent.
Employers should only collect personal information that's necessary for its stated purpose, and collect it by fair and lawful means.
Normally, employers should only use or disclose personal information for the purposes that it collected it for, and keep it only as long as it's needed for those purposes, unless it has the employee's consent to do something else with it, or is legally required to use or disclose it for other purposes.
Employees' personal information needs to be accurate, complete, and up-to-date.
Employees should be able to access their personal information, and be able to challenge its accuracy and completeness.
In some situations, employers wish to carry out the surveillance without informing their employees or obtaining their consent. This presents a problem because employees are concerned that hidden video surveillance interferes with their privacy and is used to collect and store personal information about them for purposes other than what they would reasonably expect.
Accordingly, employers need to become informed about the extent to which they can use video surveillance to monitor employees.
The Privacy Commissioner on Video Surveillance
Employers must first consider the impact of the Protection of Personal Information and Electronic Documents Act (PIPEDA) and the decisions of the Privacy Commissioner. Initially, employers must decide whether PIPEDA or similar provincial privacy legislation applies to them. PIPEDA applies to all federally regulated employers and to non-federally regulated employers when information is collected, used, or disclosed in the course of commercial activities. Only
For example, under this provision of PIPEDA, an employer is permitted to monitor an employee using video surveillance without the employee’s knowledge or consent if the employer is suspicious of theft. Further, employers are also permitted to conduct the video surveillance outside of the workplace. This would be appropriate in cases where the employer investigates an employee to verify a fraudulent claim for insurance.
Privacy commissioners consider the following four-step test when deciding the extent to which employers can use the video surveillance to monitor employees, namely whether the video surveillance was installed for a reasonable purpose:
Is the measure demonstrably necessary to meet the specific need?
Is it likely to be effective in meeting that need?
Is the privacy loss proportionate to the benefit gained? and
Is there a less privacy-invasive way of achieving the same end?
Unlike the role of the courts, the role of the Privacy Commissioner is to make a finding as to whether PIPEDA has been violated and to make recommendations regarding compliance with PIPEDA.
Recent PIPEDA, court and arbitral decisions send these messages:
In unionized situations where PIPEDA or similar provincial legislation does not apply, employers must satisfy the arbitral question whereby they may use video surveillance if they can demonstrate that there were reasonable and justifiable grounds to use the video surveillance.
In unionized situations where PIPEDA or similar provincial legislation applies, the four-step test must be considered to demonstrate the video surveillance was installed for a purpose that would be considered appropriate in the circumstances, unless the employer can prove the exemption and show that to do otherwise would compromise the availability or the accuracy of the information, and that the collection of the information is reasonable for purposes related to investigating a breach of an agreement of the law, in addition to the arbitral question of whether there were reasonable and justifiable grounds to use the video surveillance.
Where PIPEDA or similar provincial legislation applies (unionized or not), the employer may use video surveillance if it obtains informed consent of the employees.
Where PIPEDA or similar provincial legislation applies (unionized or not), the employer may use video surveillance without informed consent of the employees if the four-step test is met and the employer can show that the video surveillance was installed for a purpose that would be considered appropriate in the circumstances, or if it can prove the exemption and show that to do otherwise would compromise the availability or the accuracy of the information, and that the collection of the information is reasonable for purposes related to investigating a breach of an agreement of the law.
In non-unionized situations, where PIPEDA or similar provincial legislation does not apply, courts will likely admit video surveillance into evidence if it finds that the tape addresses the issues in dispute, and the surveillance was not conducted in a prejudicial manner.
If PIPEDA or similar provincial legislation applies, employers must be mindful of the whistleblowing provision that ensures employees of an organization are protected from dismissal, suspension, demotion, harassment, or other disadvantage if they report a privacy violation to the Privacy Commissioner.
In a recent article: Supreme Court Rules That Social Hosts Are Not Liable for the Actions of Their Intoxicated Guests published by: Andy Balaura, LLB, Pallett Valo LLP. He reviews a recent Supreme court ruling on liability.
In the recent decision of Childs v. Desormeaux, the Supreme Court of Canada considered whether individuals who host a private party where alcohol is consumed owe a legal duty of care to members of the public who may be injured by guests who drink too much and drive with more than the legal limit of alcohol in their blood.
FACTS
Desmond Desormeaux left a New Years’ Eve house party in an impaired state and caused a serious motor vehicle accident, killing one passenger, and seriously injuring three others. The party which Desormeaux attended was a “BYOB” event where the guests drank what they had brought and the only alcohol served by the hosts was a bottle of champagne at midnight. At trial, it was found that Mr. Desormeaux had likely consumed approximately 12 beers at the party over two and a half hours, producing a blood-alcohol concentration of nearly three times the legal limit. When Mr. Desormeaux left the party, the hosts of the party did not take any action to prevent him from getting into his vehicle. Mr. Desormeaux, a self-admitted alcoholic who had a prior record of impaired driving, was criminally convicted for his actions and received a 10-year sentence.
One of the injured victims was Zoe Childs, a seventeen year old who was rendered a paraplegic as a result of the accident. Childs commenced an action against both Desormeaux and the hosts of the party for the injuries she suffered.
The trial judge found that the social hosts had a duty of care to monitor their intoxicated guest’s drinking, but declined to find liability for public policy reasons. The Court of Appeal for
ANALYSIS
The Supreme Court of Canada unanimously decided that as a general rule, social hosts do not owe a duty of care to a person injured by a guest who has consumed alcohol.
In its analysis, the Supreme Court considered the following issues:
1. Was there a “sufficiently close relationship” between the hosts of the party and the girl who was injured to justify the imposition of a duty of care”?
2. Are there public policy considerations which might limit the scope of the duty of care?
In considering whether a duty of care existed between the social host and members of the public who might be injured by the host’s impaired guests, the Supreme Court considered that this was different than the duty of care owed by owners of drinking establishments. The Supreme Court noted that those who own or operate bars or taverns have a statutory obligation to monitor the consumption of alcohol or to control the premises where alcohol is served. Unlike commercial hosts, a host of a private party has neither an institutionalized method of monitoring alcohol consumption and enforcing limits, nor a set of expectations that would permit him or her to easily do so. The Supreme Court also noted that unlike the host of a private party, commercial hosts have an incentive to serve many drinks to patrons to achieve higher profits, and the law imposes obligations to counter-act that incentive.
The Supreme Court found that the injury to Ms. Childs was not reasonably foreseeable by the party hosts. In its view, the holding of a house party where alcohol is served was not an inherently risky activity, such as a boating party. It also found that social hosts are not usually in a position in which they control their guests’ autonomy during the course of a party. It was specifically stated that when a person attends a private party, he does not “park his autonomy at the door.” The Supreme Court further noted that even if Ms. Childs’ injury could have been forseen, the failure of the party hosts to act was not wrong because the circumstances of the case did not create a positive duty on the party hosts to eliminate the risk of harm (such as taking the keys from the driver).
The Supreme Court concluded that the necessary “close relationship” had not been established and consequently, that the social hosts of parties did not owe a duty of care to public users of highways.
IMPLICATIONS
The findings in the Desormeaux decision will limit the likelihood that hosts of private parties will be liable for the wrongful acts of their inebriated guests. However, individuals who host parties should not view the decision as firmly closing the door on a possible finding of social host liability. In its decision, the Supreme Court of Canada placed a great deal of reliance on the unique facts of the case, noting that the party hosts were unaware of how much alcohol their had consumed because it was a “BYOB” party.
The Supreme Court’s ruling leaves open whether a social host who continues to serve alcohol to a visibly drunk guest, knowing he or she will later be driving, is under legal duty of care to third parties. Even then, however, a Court will have to consider whether public policy implications may negate the liability of the social host.
It should be noted that this case doesn’t change the obligations of employers as established in the case law, because depending upon the fact situation, employers may have greater control over how much employees drink to owe a duty of care towards employees who attend a work-related function such as a Christmas party.
Maintain records for a specified period of time.
Each of the above contains detailed requirements that must be followed; it is strongly recommended that employers refer to the new general and updated industry-specific regulations for these requirements.
When creating these new requirements, Ontario’s Ministry of Labour aimed to ensure that workers in a confined space, workers performing work related to the confined space, and those who attempt to rescue in an emergency would have more safety measures to protect them from injuries and fatalities.
Additional information can be found in the Occupational Health and Safety Act - O. Reg. 632/05, and in the Ontario Ministry of Labour Backgrounder Working in confined spaces.
Cheryl A. Edwards and Landon P. Young
Taking advance reasonable steps and action is known to all OH&S practitioners as the concept of due diligence. Attempting to create necessary due diligence steps and processes after an accident has occurred simply does not work. The onus rests on employers, supervisors, managers, officers and directors (and workers) to anticipate hazards and deal with them effectively in a systematic and ongoing manner. Yet the necessary real and practical steps to meet court-developed, recognized due diligence standards for proper health and safety programs continue to elude many companies and individuals
The Elusive “Reasonable Care” Standard
In each case involving a tragic workplace accident, OH&S investigators, prosecutors and courts are regularly involved in assessing the same issues: what went wrong and did the company or the individual take the necessary reasonable steps in advance of the tragedy to prevent it? In considering whether a valid “due diligence” or “reasonable care” defence may exist, the courts apply a long-standing legal standard in assessing whether the accused took all reasonable care in the circumstances. But how do courts examine whether an accused party was “duly diligent” or took “reasonable care” in the circumstances? The legal standard is well established, but what does it mean? Whether or not the accused can prove that “reasonable care” was taken will always depend upon the particular facts and circumstances. The steps that are accepted as necessary to establish due diligence will vary--what may be accepted as “reasonable care” to prevent an accident or incident in one case may be different from what is accepted in another. Thus the standard is considered by some to be too elusive and difficult to meet. The various steps or measures considered by the courts to determine whether a party has exercised “reasonable care” in the circumstances include:
system exists.
This series of Updates will examine each in turn. This month we start with the first two steps listed above:
The fact no one actually foresaw the possibility of the accident (“we had no idea that could happen”; we did not expect the worker to do that”) will not by itself be sufficient for an accused to establish that the accident was not foreseeable. The court stated that the proper test of foresee ability was whether a reasonable man in the circumstances would have foreseen that the situation was dangerous.
The courts have recognized that actual knowledge of a workplace hazard by a company or employees in the workplace can be a factor to be considered by the courts when considering the foresee ability of an accident. Court expectations of reasonable care give rise to the need to create health and safety programs and procedures to ensure careful assessment of known and potential (foreseeable) workplace hazards.
Steps to ensure that this occurs and can be proven include: regular documented supervisory and managerial review of workplace areas, equipment, conditions to identify potentially hazardous conditions; hazard identification training for those assigned the task of assessing the workplace for hazards; external consultant or auditor review of premises and equipment as appropriate to ensure compliance with applicable standards (i.e. CSA and other standards for lockout and guarding);reasonable, prompt and recorded action to rectify hazards identified; and ongoing review of “near miss” or accident reports, workers compensation claims, and concerns/recommendations arising from joint health and safety committee meetings, and recorded action to rectify hazards identified in these processes.
Just because things are commonly done a certain way does not necessarily mean that way is safe. Employers should consider whether the industry practice or standard is, in fact, safe and if it is appropriate for the workplace. However, on Appeal (unreported decision of Ont. Ct. Justice, April 24, 2006, Lane, J.) the Court took a different view. “Although the employer relied on a workplace practice learned in apprenticeship training and standard in the industry, the evidence indicates no reasonable steps taken to ensure the effective operation of that practice”. There was a breakdown in communications, the person who responsible for monitoring the leak test was not actually doing so, and there was miscommunication between all parties at the job site, leading to a failure to follow standard procedure. The court found, significantly, that: an unwritten procedure, standard in the industry well known to workers, taught through a comprehensive program of apprenticeship training, and a basic skill used every day in the trade, was not sufficient to ensure the protection of workers.
The duty of the employer to train applies to all workers (inexperienced and experienced) and cannot be delegated (to apprenticeship training) and cannot be based on an industry standard that is inconsistent with the OHSA and its regulations. a practice – even one taught in apprenticeship training – is not a “procedure” in the sense that a party has put their minds to the steps necessary to obtain a particular goal in an organized way. Industry practices were not comprehensive.
They did not address the broader context of who puts the test on, who monitors it, who discharges it, how proper and thorough communication between workers by use of signs, tags, and lockouts would occur. “Attaching makeshift test equipment may be a practice the workers learned in their apprenticeship 20 or more years ago. In the context of expanded public and legal expectations for Occupational Health and Safety Act since that time, such an antiquated method of communication can hardly be said to be a procedures sufficiently comprehensive to achieve the goals and expectations of the OHSA”.
The lesson for companies and their management to draw from this case is that blind adherence to an industry standard or practice or industry standard apprenticeship training may not be sufficient to meet due diligence standards. Companies must ensure that; they are satisfied that training of trades under industry standard programs meets current OH&S regulatory requirements. If necessary, supplemental training in safety requirements and procedures must be provided; written policies, practices, procedures for the work of the trade are developed in order to ensure that safe work practices are followed for the employer’s particular work or workplace. Employers must consider whether or not industry standard practices are safe ones for the workplace or whether they need to be revised or supplemented for the specific work being done.
Due Diligence Update June 19, 2006 © Stringer Brisbin Humphrey 2003
This news Letter provides general information only. This publication is written for informational purposes only and should NOT be relied upon as legal advice or opinion.