Exceeding industry standards does not, on its own, protect
employers from health and safety convictions or fines, a recent
court decision shows.
A roofing company was charged with two offences under the
Ontario Occupational Health and Safety Act. The charges
alleged a failure to ensure that roofing workers were adequately
protected by a guardrail system that met the requirements of the
Construction Projects regulation under the OHSA. A worker fell off
a roof after he had removed both the middle and upper parts of a
guardrail system to dump garbage, without tying-off. His sleeve
caught on a motorized buggy he was using to transport waste on the
roof; both he and the buggy went over the edge.
The court found that the guardrail system was routinely opened
up by removing the middle rail and possibly also the top rail. The
original wooden middle rail had been replaced with an iron bar that
was not securely fastened, at the time of the accident, to the
guardrail system. The presence of the removable iron bar violated
the regulation. Also, there was no clear process in place for the
garbage disposal at the time of the accident.
The court noted that the company had "generally met or
exceeded many industry standards in its operations", and had
clear internal policies, weekly production meetings to discuss
safety topics, and "Toolbox Talks". It also hired outside
consultants to teach various health and safety courses and to
perform spot audits of safety. There was evidence that workers who
failed to use safety equipment were sent home without pay and given
retraining. The company had even fired long-term employees who
repeatedly violated safety rules.
However, none of that was enough to establish the "due
diligence" defence, because the company had not taken
"all reasonable steps to prevent this accident".
This case shows that an excellent safety program may not be
enough to defeat OHSA charges if the employer failed to properly
address even one particular hazard.
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