Should the employer be held responsible for safety risks by its supervisors?
By Jeffrey. R Smith
Employers are responsible for the health and safety of employees in the workplace — there’s no doubt about that.
If a worker is injured or killed, or a government inspector discovers a health and safety violation, the employer could be subject to fines.
But even if an employer takes proper health and safety precautions, there could still be an incident if a supervisor or front-line worker doesn’t follow those precautions. Where does the liability lie in those circumstances?
If an employer is found to have taken proper safety measures and something goes wrong because of an employee’s actions — and that employee has been properly trained on safety procedures — the employer may escape liability. In fact, there have been cases where such misconduct by an employee is just cause for dismissal, or at least some form of discipline. However, if a supervisor or other member of management is the cause of the safety violation, then that individual can be held personally responsible, either jointly with the company or separately.
In the event of a worker’s death, individual representatives of companies can be criminally charged if the death was the direct result of negligence. This has happened a few times in the past several years since Bill C-45, also known as the corporate killing law, came into effect — most recently following the deaths of four Toronto construction workers, plus a fifth seriously injured, when a faulty scaffold on a high rise building collapsed. The company was charged and fined and a senior manager, supervisor and director were criminally charged.
But if a supervisor ignores the company’s recommended safety procedure on his own without the company’s knowledge, should the company face any liability? Recently, an Ontario construction supervisor was fined $30,000 for failing to ensure workers were following the correct procedure to remove concrete panels from a bridge or that they had proper fall protection. When part of the bridge fell on a worker and killed him, the supervisor was charged.
The company provided the supervisor with the proper procedure to follow, and ultimately had to leave things in the supervisor’s hands. Since it had met its obligation to provide safety measures and had expected the supervisor to follow through, the company wasn’t fined.
Though sometimes employers can’t be expected to control what some individual supervisors do, the supervisors are also acting as agents of the employers. So where does the line of liability lie? Should an employer be liable for the actions of the individuals it appoints in supervisory positions or, once the employer meets its obligation to provide training and proper safety materials, does liability shift to those carrying out the procedures?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.
