Due Diligence
An ill-equipped and ill-prepared employer is more likely to suffer severe consequences than one that is properly prepared.
Health and safety legislation is intended, universally, to ensure that employers and employees act responsibly regarding health and safety within the workplace. In matters of incident or accident, employers are required to prove that they have acted responsibly in the prevention of accidents and in the preservation of health.
Guilty until proven innocent
This is generally termed proving “due diligence.” Although the specific requirements may change from jurisdiction to jurisdiction, laws are generally uniform in their intent and methodology.
Due Diligence is the primary defense for individuals or corporations charged with an offense under health and safety legislation. Legislation generally enables accused persons to avoid conviction, fines, and/or imprisonment if they can prove that they acted with sufficient care, and in a reasonable manner in the specific circumstances under scrutiny.
Bill C-45
The proclamation of Bill C45, an act to amend the Criminal Code of Canada along with the Occupational Health and Safety Code (OH&S) should serve as notice to all that workplace health and safety is no longer a peripheral issue to be handled solely by safety officers. It is, and must be, a primary concern for everyone in a corporation from the Board of Directors on down to the most junior employee.
Hefty fines
This makes sense not only from a moral and ethical perspective but also from an economic one. Lost time and damages from workplace accidents coupled with hefty fines can do significant damage to an employer’s bottom line. For example, fines under Alberta’s Occupational Health and Safety Code can now reach $500,000 for a first offence and up to $1,000,000 for any subsequent offence.
Criminal negligence
Under Bill C45, a corporation can be liable for criminal negligence in cases of wanton and reckless disregard for worker or public safety. Employers are also subject to unique sentencing options including the required development of policies and court ordered procedures and public disclosure.
A recipe for disaster
Given the large fines which can be levied and the possibility of criminal sanctions, it is imperative that employers develop and practice proper safety policies and procedures in order to try and prevent accidents from occurring. The fact an injury has not occurred yet has no relevance to the legislative requirements. Waiting for an accident to happen and then responding is a recipe for disaster.
Section 196(6)(a) of the BC Workers Compensation Act states that the employer must prove, on the balance of probabilities, that it exercised Due Diligence to prevent the non-compliance to which the penalty relates.
Workplace Supervisors and Managers are legally required to know the following:
- The concept of the Internal Responsibility System.
- The roles & duties of the Employer, Supervisor/Manager & Employee/Worker under the Health & Safety legislation.
- The concept of due diligence and “taking all reasonable precautions.”
- The application of Health & Safety legislation to the workplace.
- How to identify hazards in the workplace.
- How to address work refusals.
- How to conduct accident investigations.
- How to properly document safety related activity.
Effective supervision and management is essential for the provision of a healthy and safe workplace.
As agents for the Employer, Supervisors and Managers have responsibilities and legal liability under Health & Safety legislation for the protection of workers.
Would you—yes YOU as an owner or supervisor—pass the test of Due Diligence if a worker was critically injured on the job today?
If you would like to see the Due Diligence checklist that may one day either exonerate you of criminal charges or make you wish that you had been more diligent about documenting everything that’s on it, then please fill out the form below.