Two forklift operators at a bottling plant have been found guilty after they were served with tickets under the Occupational Health and Safety Act charge for using cell phones while sitting on their forklifts. The charge was operating equipment in a manner that may endanger a worker: one could say "distracted driving", but on a forklift.
A coworker staged a work refusal after observing the forklift operators using cell phones while seated on their forklifts. A Ministry of Labour inspector was called in. The coworker, who was retired at the time of trial, testified that one operator was seen sitting on the forklift looking at the cell phone while the forklift was stationary and not moving, and the other operator was seen showing his cell phone to another employee.
The court did not accept the forklift operators' version of events: one said that he had used his cell phone only to check the time, and the other said that he was off of his forklift and that it was actually another employee who had been using his cellphone. The court found that they had their cell phones with them and were using them.
The court decided that "operating or using" a forklift included sitting on a forklift even when it was stopped and turned off; other workers and forklifts may be nearby and put at risk by the operator's distraction and inattention to his surroundings while using the cell phone. Further, the employer had a clear rule prohibiting use of cell phones in the warehouse, and even displayed a poster with a cell phone with a slash through it. The operators were therefore guilty of the OHSA charge against them.
The court stated:
"Like motorists who unlawfully hold or use cellphones or other mobile communication devices while operating or driving motor vehicles on public highways in Ontario, workers that use cellphones or other mobile communication devices while operating equipment or machines in factories or warehouses, such as a forklift, would also pose the same danger to themselves or others, as a consequence of being distracted to what is going on around them while using those mobile communication devices."
Ontario (Ministry of Labour) v. Nault, 2018 ONCJ 321 (CanLII)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.