Always room for improvement when it comes to workplace safety programs
Question: What are some of the more common gaps to watch out for if a company already has a mature and functioning occupational health and safety (OHS) program?
Answer: In our experience, even employers that devote considerable time and resources to their OHS programs will always find there is room for improvement, particularly in one of the following three areas:
•discipline and discharge for OHS infractions
•continuous and post-event program re-assessment
•making the most of your joint health and safety committee.
Discipline and discharge for OHS infractions
Consistency is the hallmark of a solid OHS program. You have spent time and money training employees and developing and implementing OHS policies and procedures. The value of these important due diligence steps is diminished significantly if you do not enforce your expectations on the ground.
By failing to consistently (and in measured response) address OHS violations, you telegraph to employees you do not take OHS seriously and you will tolerate exceptions.
Courts view this as tantamount to condoning the safety violations, thus invalidating a due diligence defence. This type of inconsistency can also lead a court or arbitrator to conclude discipline and/or discharge that you actually impose is unsupportable because you treated like situations differently in the past.
If you already impose measured discipline and discharge, as appropriate, for OHS violations — keep up the good work. Perhaps review the documentation process to ensure you can use this to demonstrate your commitment to OHS.
If your disciplinary practices are inconsistent or otherwise deficient, consider refreshing employees on your OHS program and explicitly advising employees (and supervisory and management personnel) that, regardless what approach the company has taken in the past, be assured the company takes OHS seriously and employees who commit OHS violations may face discipline up to and including dismissal.
Continuous and post-event program reassessment
Unfortunately, some lessons are only learned the hard way. Whether you have had a workplace accident, a near miss, a work refusal, an incident of workplace violence or harassment or a visit from an OHS Inspector, it is critical to conduct a review of your OHS program.
Depending on your jurisdiction, certain aspects of OHS programs, such as workplace violence and harassment policies, must be reviewed at least annually — even if no incidents occur. It is a best practice to conduct program reviews more often than as strictly required by law.
Employers have a general duty to take all precautions reasonable in the circumstances for the protection of workers. So, for example, even if an accident wasn’t reasonably foreseeable without the benefit of hindsight, post-accident it would be difficult to argue the same if the accident were to happen again.
Your review should be conducted independently of any JHSC investigation, because as the employer you bear ultimate responsibility. Of course, the content and extent of the review will vary, depending on the circumstances.
In some cases simply discussing the event with employees involved and your management team will suffice. In other cases, you may have to conduct a full-blown investigation and even retain external investigators and experts (through counsel to retain privilege).
Whatever the results of your review, the goal is to learn from the exercise. Where appropriate, amend policies and be prepared to retrain employees, supervisors and managers. Keep records of your efforts so you can provide evidence of your due diligence activities.
Making the most of your JHSC
A well-functioning JHSC is a critical element of the internal responsibility system in your workplace. A dysfunctional one can be the harbinger of critical failures in your OHS program .
First and foremost, it is important that your JHSC members have the knowledge and training necessary to fulfill their responsibilities. All Canadian jurisdictions require employers to ensure a certain number of workers on the JHSC have received training, such as hazard recognition training. Some have specific training for JHSC members. You should refer to the law in your jurisdiction to ensure you’re compliant. If not, remedy that promptly.
Second, many employers have a tendency to take a reactive approach with the JHSC, treating it as a necessary evil. Instead, task your JHSC to brainstorm best OHS practices in areas that are meeting but not necessarily exceeding your expectations.
They may be able to identify revisions to your workflows or processes that improve overall safety. Moreover, proactive improvements demonstrate due diligence better than a reactive approach.
Third, review all JHSC meeting minutes carefully and take seriously all concerns raised and recommendations made. When an OHS inspector arrives it is common for her to request copies of those minutes. Ignore them at your peril.
Finally, as a joint labour-management committee your JHSC is well-placed to support and enhance your OHS culture.
Consider placing your JHSC at the forefront of planning workplace safety initiatives. Their involvement and input should help improve employee buy-in.
Ryan Conlin is a partner with Stringer Management Lawyers in Toronto. He can be reached at (416) 862-2566 or [email protected]. Jeremy Schwartz is an associate with Stringer Management Lawyers in Toronto. He can be reached at (416) 862-7011 or [email protected]. For more information, visit www.stringerllp.com.
