The relations that are created between the employer and employee at the workplace can be multifaceted and diverse – both have responsibilities and rights so that the activity of both is protected by the legislation of the country they live and cooperate in. Historically, the rights of employees, as well as measures to provide safety and health protection at the workplace, have been neglected and skipped, protecting only the interests of employers in their pursuit of profit and wealth. However, times have changed, and nowadays in every developed, democratic country, there is a vast set of legislative acts that protect the rights of both employers and employees and help them function harmoniously and cooperate efficiently.
Safety and health of employees are being paid separate attention to, since at times it is very hard to estimate whether the conditions at a manufacturing capacity comply with the established norms or not – there have been cases when people worked in inhuman conditions only because of their wish to provide for their living, so they did not report the illegal situation and suffered serious injuries or had long-term consequences for their health. Thus, nowadays there are a number of official bodies who examine the workplace and assess its correspondence to the norms established on a legal basis – they are guided by a number of laws such as the Occupational Health and Safety Act and other acts that control compliance with the norms established by the state.
Discussing safety measures that should be taken at the workplace to avoid legal prosecution it is necessary to turn to the concept of due diligence – this is a mode of behavior that should be adopted by the employer in order to be able to successfully continue his or her business activity. It comprises taking a certain set of measures to ensure the compliance of the workplace’s characteristics with the legal norms and protecting the employees from injuries and diseases that may be caused in the process of work. Officially, due diligence is “the care that a reasonable person exercises under the circumstances to avoid harm to other persons or their property” (Due Diligence, 2009). Due diligence actually constitutes performance of actions or taking reasonable strategies and precautions under reasonable circumstances to prevent any injuries or accidents at the workplace. The person who adopts a strategy of due diligence at work should take all necessary safety measures, understand rules and regulations, be able to analyze and identify problems, and offer solutions to them. It is important to document the whole set of procedures when implementing due diligence, because in case of any legal matter the employer should have all needed evidence of continuous taking necessary and reasonable precaution for injury prevention. The legal basis for compliance with the principles of due diligence is the Occupational Health and Safety Act setting out standards of safety at the workplace:
“The main purpose of the Act is to protect workers from health and safety hazards on the job. It sets out duties for all workplace parties and rights for workers. It establishes procedures for dealing with workplace hazards and provides for enforcement of the law where compliance has not been achieved voluntarily. Fundamental to the successful working of OHSA is the workplace Internal Responsibility System (IRS)” (The Occupational Health and Safety Act, 2007).
The concept of due diligence has many components pertaining to different aspects of the company’s functioning – for example, one of the spheres of application of the term ‘due diligence’ is the case of applying the internal intelligence investigations in order to collect data and make a summary that would assist in making a strategic business decision (Bomberg, 2009). However, the present paper is more concerned with the legal issues connected with due diligence application, which involves completely different actions and measures:
“In law, due diligence refers to precautions that are supposed to be taken by a person or company in some context. For example, did the company thoroughly check their product beforehand to ensure it was non-toxic or was not a strangulation hazard? If they do not, and bad results come of their negligence, they can be held criminally liable” (What is Due Diligence? 2009).
It is surely evident that different types of jobs require different sets of precautions taken to ensure compliance with the state norms. This is why before generating a complex of efficient due diligence measures every employer or the person responsible for due diligence implementation has to consider varied implications of due diligence. Besides, consideration of cases of controversial situations may guide him or her in the establishment of weak sides of due diligence measures in every particular company and introduce all needed improvements to protect the company and employees against potential legal procedures. In this context, a number of eloquent examples may be provided that will show some possible complications that arise in the companies under the Canadian legislation, namely the OHSA.
The first case one should refer to is the huge legal fine imposed on the Durez Canada Company and its supervisor Pat Driver in June 2009. Legal procedures were initiated because of multiple traumas the worker of the company experienced because of careless attitude of the supervisor to consultations and explanation of basic precaution measures, the inability of the company to provide basic technical precaution assistance and overall negligence in the working process:
“A Ministry of Labour investigation found that proper fall protection measures and procedures were not carried out at the workplace. Also, the worker had not been provided with training and supervision to work safely on a demister pot, and the company had not provided the worker with a safe work procedure to use when working with the demister pot” (Durez Canada Company Limited And Supervisor Fined $73,000 Total After Worker Seriously Injured, 2009).
The case investigation proved that the employer failed to provide for the basic compliance with the OHSA stating that the main obligation of the employer is to ensure that “the health and safety of workers on the project are protected” (OHSA, 2007). Besides, the issue of training is raised as a central point in the fine imposition – under the OHSA, section 25(2) titled “duties of employers” the employer should “provide information, instruction and supervision to a worker to protect the health or safety of the worker” and also, “when appointing a supervisor, appoint a competent person” (Occupational Health and Safety Act, 2007). The fine was reasonably imposed both on the company and on the supervisor because the overall responsibility for implementation of due diligence at the workplace lay on Pat Driver.
The importance of keeping detailed and valid records and documentation on safety measures as evidence of due diligence can be illustrated by the second case – the legal decision concerning the SNC-Lavalin Power Ontario Inc., which was based on graver negligence of the company that resulted not in injuries but in the death of a worker. The investigation also showed a number of controversies concerning training, preparation and consultation about the peculiarities of exploitation of equipment and negligence as for the provision of satisfactory precaution measures directly at the working place:
“A Ministry of Labour investigation found that the electrical panel was not tagged or locked out. Inspectors also found that the company and subcontractor both had lockout policies in place and SNC-Lavalin had conducted an orientation for subcontractors. However, records did not show the electrical crew had been given detailed training or a copy of either company’s policy. The SNC-Lavalin site-specific policy was also not fully implemented at the time of the incident” (SNC-Lavalin Power Ontario Inc. Fined $300,000 After Worker Killed, 2009).
The emphasis in the case study is made on the absence of documentation that made up a legal basis for prosecution and serious penalties for the company. Guided by section 125(1) of Canada labor code stating that the employer, among other duties, is obliged to “investigate, record and report in the manner and to the authorities as prescribed all accidents, occupational diseases and other hazardous occurrences known to the employer” (Canada Labor Code, Part II, 2007).
The last case to be discussed in the present paper is the decision on negligence in the Central Machine and Marine Inc. resulting in a serious injury of a worker. The company was found guilty in its inability to comply with the regulations established by the OHSA (namely, section 25(2), items (h),(i)) and was penalized according to the results of the investigation:
“The workers were under the raised load and one worker was removing another bolt when the top and middle rings slid away from the core and onto the worker’s arm, severely crushing it against the bottom ring and a piece of lumber. A Ministry of Labor investigation found that the engine balancer had not been secured or blocked after it was raised” (Central Machine And Marine Inc. Fined $65,000 After Worker Seriously Injured, 2009).
Taking into consideration all cases that were discussed in the present paper it becomes possible to estimate a range of obligatory points that should be included in the due diligence implementation plan in every particular company. The following considerations will help the company avoid injuries, deaths, equipment damage and lawsuits that may result not only in financial losses but in worsened reputation and even seizure of the company’s activities.
First of all, the employer should remember about communicating the information on health and safety measures to the employees for them to possess information on security measures they are eligible for, as well as a set of possible consequences and potential threats they will face in case of not keeping to safety measures and exposing themselves to the danger that goes beyond the limits of the company’s responsibility.
The second element that will efficiently increase due diligence compliance is the active feedback and reporting system that should be enacted with active cooperation with the employees. Workers should promptly report about any defects of the machinery they work with; this information should be officially recorded to avoid controversy in case some trauma at the workplace occurred – if the worker had previously reported about the defect, then the entire responsibility would lie on the employer who did not respond to the report in a timely manner and allowed the workers to operate defected equipment.
The next element to be taken proper care of is the efficient arrangement of supervisors’ activity in the company. As a rule, supervisors are entirely responsible for the implementation of health and safety regulations during the working process. According to the OHSA,
“A supervisor shall ensure that a worker,
- works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and
- uses or wears the equipment, protective devices or clothing that the worker’s employer requires to be used or worn” (OHSA, 2007).
Thus, a good and careful supervisor is extremely important in the due diligence issues, monitoring the process of keeping to safety measures and reporting any negligence or controversy that takes place directly and the workplace.
Another element that acquires crucial importance in the process of being involved in certain legal procedures connected with legal responsibility for negligence at the workplace is proper documentation of all relevant data pertaining to health and safety measures taken in every particular company. Besides being able to communicate the information to employees, the employer has to submit detailed, valid reports to authoritative bodies monitoring compliance of the company’s actions to the Canadian legislation. The second case discussed in the present work and pertaining to the Canada Labor Code serves as a wonderful illustration for the issue.
Keeping to a set of these measures, continuous work on the improvement of health and safety conditions as well as provision of the reciprocal communication process between the employer, the responsible supervisors and the employers will help the employer establish an effective due diligence implementation and will protect the company as well as its employees from legal prosecution under the Canadian legislation, Labor Code and OHSA.
References
Bomberg, A. (2009). What is Due Diligence?
Canada Labor Code, Part II (2007). Web.
Central Machine And Marine Inc. Fined $65,000 After Worker Seriously Injured (2009). Web.
Due diligence (2009). In Merriam-Webster Online Dictionary.
Durez Canada Company Limited And Supervisor Fined $73,000 Total After Worker Seriously Injured (2009). Web.
Occupational Health and Safety Act (2007). Web.
SNC-Lavalin Power Ontario Inc. Fined $300,000 After Worker Killed (2009). Web.
The Occupational Health and Safety Act (2007). Web.
What is Due Diligence? (2009). Web.