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1 1 The HR Dividend How safety and return to work pay off David Law March 25, 2009

2 2 An accident is always waiting to happen "There are no accidents in my philosophy. Every effect must have its cause. The past is the cause of the present, and the present will be the cause of the future. All these are links in the endless chain stretching from the finite to the infinite." Abraham Lincoln

3 3 Overview  The legal framework for the enforcement of occupational safety  The enforcement of safe practices by the employer and the regulator  Prosecution, Conviction and Penalties  Safety is “the ultimate HR issue”  An emerging role for the human resources practitioner in the safety paradigm

4 4 The Legal Framework  The Criminal Code  The Occupational Health and Safety Act / Part II of the Canada Labour Code  The Workplace Safety and Insurance Act  The Ontario Human Rights Code / The Canadian Human Rights Act

5 5 Criminal Liability for Workplace Negligence  Section 217.1 of the Criminal Code creates a “duty of care at work” Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.  Failure constitutes criminal negligence  There is no maximum financial penalty for organizations that are convicted of these violations  The first conviction occurred in the matter of R. v. Transpave at St. Jerome, Quebec in 2008. The fine: $100,000

6 6 The Occupational Health & Safety Laws  Section 24 of the Ontario Occupational Health and Safety Act requires employers to take “every precaution reasonable in the circumstances” to protect a worker from hazard.  Section 25 and the Regulations to the OHSA enumerate lengthy and detailed specific safe practice requirements  Section 124 of the Canada Labour Code similarly requires employers to “ensure that the health and safety at work of every person employed by the employer is protected.”  Section 125 of the Code, and the federal safety regulations, enumerate detailed requirements in federal workplaces  Each jurisdiction has specific rules regarding hazardous substances

7 7 Worker Participation and Rights  The right to refuse work which the worker sincerely believes to be dangerous  The obligation that every employer appoint a Health & Safety Representative for workplaces of under 20 workers, or a Joint Committee for each larger workplace  The duty of employers to investigate complaints and concerns, sometimes in concert with worker representatives, and to correct hazards immediately  The right of workers to challenge their employers’ decisions to Ministry of Labour / HRSDC, which will send Inspectors to determine the issue  Absolute protection of the right to complain, or to refuse work, without reprisal

8 8 Internal Responsibility System  Employers are expected to use the statutory methods (Joint Committees and worker participation) along with management personnel to ensure that the workplace is thoroughly inspected throughout the year  Employers are expected to correct identified hazards promptly, based on a rational set of priorities and the immediacy of the risk  The search is for “known and foreseeable hazards”  The “ERP System” is to be applied: Eliminate the risk Reduce the risk Protect people against the risk

9 9 Regulatory Enforcement  The regulator (Ministry of Labour / HRSDC) will attend when called  The regulator will also schedule its own program of workplace inspections, without invitation. No warrant is required and the employer must make the premises, records and information available on demand to the Inspector  A warrant can be necessary where the Inspector is not doing a regular inspection, but is attending specifically to investigate where they have probable cause to believe an infraction has occurred  Infractions will be identified and typically, Orders will be issued requiring the employer to correct the deficiency within a specified time period  Serious infractions, often involving accidents and injuries, will attract prosecution in a quasi-criminal procedure  The maximum fines: Ontario $500,000 per infraction; Canada, $1,000,000 per infraction  Imprisonment: Ontario 1 year; Canada 2 years

10 10 Prosecution  Workers, supervisors and employers have legal responsibilities and can be prosecuted  The process is virtually identical to that of a criminal prosecution  Although the accused is presumed innocent, these are “strict liability” statutes which means that if the Crown Attorney can establish beyond a reasonable doubt that the infraction occurred, the accused will be convicted unless it can raise a defence of due diligence or mistake  Due diligence is the most common and effective form of defence, because it often prevents accidents and/or forms a legal shield for the accused workplace party

11 11 Conviction  The Ontario Ministry of Labour is one of the most aggressive enforcers of safety provisions in the world  Since the mid-1990s the number of prosecutions and the size of fines has significantly escalated  A high percentage of cases lead to conviction, either at the end of a trial or as a result of “plea bargaining”  Relatively few violators go to prison; most individual and corporate accused are subject to fines  Factors influencing the penalty: capacity to pay (size of employer), nature of the infraction, actual or potential harm, prior record

12 12 Fines for a Non-Injury  $47,000 - A & P Canada Co., was fined for a violation of the Occupational Health and Safety Act for failing to ensure that a cardboard compactor was equipped with and guarded by a guard or other device that prevented access to an exposed moving part.  $40,000 - Universal Silo Services Incorporated, a Maple, Ont. based company that cleans silos, was fined for a violation of the Occupational Health and Safety Act that resulted in a worker being trapped in a bin for more than half a day.

13 13 Fines for an Injury  $60,000 - Goodyear Canada Inc., a Toronto based manufacturer and processor of conveyor belts, was fined for a violation of the Occupational Health and Safety Act that resulted in a finger injury to an employee.  $50,000 and a supervisor was fined $2,000 - The City of Thunder Bay was fined when a pick-up truck backed into a worker walking nearby causing a leg injury.  $5,000 - A Leamington farmer was fined for a violation of the Occupational Health and Safety Act that resulted in an ankle injury to a young employee.

14 14 Fines for Serious Injury  $85,000 - Canadian Linen and Uniform Service Co., supplies and cleans uniforms for various companies, with a plant in Ottawa, was fined for a violation of the Occupational Health and Safety Act that resulted in a serious leg injury to an employee.  $70,000 - A Brampton pet supply company was fined in the Ontario Court of Justice, following the injury of a worker in a forklift accident.

15 15 Fines for Serious Injury  $70,000 - A St. Mary's, Ont., food processing and packaging company pleaded guilty when the worker, in trying to clear part of the machine, became trapped in the machinery by the head and suffered critical injuries.  $50,000 - Toronto-based Penske Logistics Canada Ltd. was fined in the Ontario Court of Justice after pleading guilty to failing to protect the health and safety of a worker after the worker’s hand was injured.

16 16 Fines for a Fatality  $130,000 - Riviera Inc., a St. Laurent, Quebec-based manufacturer of men's clothing fined for failing to ensure safe work procedures at its Napanee manufacturing plant.  $125,000 and a supervisor was fined $12,000 - T.R. Hinan Contractors Inc., a St. Catharines-Ontario based construction company was fined for failing to take every reasonable precaution to not overload a boat carrying workers and equipment.

17 17 Fines for a Fatality  $325,000 - Lafarge Paving & Construction (Eastern) Ltd., of Concord, Ontario, was fined for failing to have a proper safety procedure in place for the work being done.  $200,000 - SCM Supply Chain Management Inc., of Mississauga, was fined for failing to provide appropriate guards on an automated device.

18 18 Due Diligence  Virtually every accident is attributable to a human decision and/or action  Managing safety is part of managing people  Due diligence with suppliers, contractors, agents, employees  Identification of risks – in the environment, and among the people  Frequent training and communication  The only right way to work, is to work safely  Disciplined approach to safety practice at work  Documentation, consistency, follow-up

19 19 Risk Areas  Safety Enforcement - falls, unguarded machines - workplace violence prevention - health care related industries  Workers’ compensation claims - stress and harassment-related psychological ailments - exposures to hazardous substances - exposure to communicable conditions (health care industry)

20 20 Compensation and Accommodation  Both the Workplace Safety & Insurance Act (WSIA) and Human Rights laws prescribe accommodation in order to return an injured worker back to employment  Accommodation can be complex, costly and often involves considerable administrative effort and litigation expense  The WSIA includes extensive insurance provisions covering Loss of Earning benefits until age 65, Non-economic Loss benefits for physical/psychological effects, top tier medical coverage and vocational rehabilitation services (Labour Market Re-entry)  A serious injury claim of long duration can cost an employer hundreds of thousands of dollars in additional surcharges (Schedule 1 employers) or direct costs (Schedule 2 employers)

21 21 Return to Work Workers absent due to work-related illness must be accommodated back to available productive work. A failure to do so can trigger some of the following risks:  additional “LOE” benefit costs under s. 43 of the WSIA  penalties under s.41 of the WSIA  substantial costs for “Labour Market Re-entry” under the WSIA  NEER surcharges  complaints and grievances alleging a failure to accommodate contrary to the Human Rights Code  wrongful dismissal claims with additional damage awards

22 22 The Most Difficult Issue  Occupational health and safety cases are often the most costly, complex, litigious and destructive problems to arise for workplace parties  Personal injury or disease can inflict pain, loss of function and severe interference with the enjoyment of life. Often beyond repair  The loss of trained personnel to injury is a waste of resources and usually means that a replacement will have to be found  To be asked or ordered to work in unsafe conditions is an affront to one’s dignity  Such conduct brings no credit to the employer or managers that require or tolerate it  Workers will “vote with their feet” and find alternative employers  Disagreement over safety conditions triggers other forms of contention and conflict between workers, managers and employers

23 23 The Ultimate H.R. Issue  Ensuring safe work practice involves recruitment, training, job descriptions, the provision of PPE, tools, workplace environments, enforcement of organizational cultural norms and rules, the quality of supervision, discipline, rewards and documentation  Managing safety-related complaints and work refusals involves knowledge of the workplace and people involved, legal duties and dispute resolution  Managing regulatory enforcement requires interacting with the regulator, gathering evidence, preparing documentation and witnesses, dealing with legal and technical advisors  Dealing with injury cases always involves the insurer, often means dispute resolution with the worker and/or union and an understanding of accommodation principles  This is the ultimate “human resources” issue, and yet very often organizations treat OH&S as a secondary, technical or marginal matter to be handled by persons who have neither the time nor expertise to succeed

24 24 The Safety Bottom Line  Organizations must manage all aspects of human resource management – including OH&S – through a single authority or coordinator  HR professionals need a high level of knowledge about the regulatory requirements and the principles of due diligence, both to prevent occurrences and to prepare the organization to defend itself in an increasingly hostile regulatory environment  The HR-OHS authority needs to develop relationships with internal parties (workers, supervisors, management), external resources (technical advisors, legal, health care providers, ergonomists) and regulators (Ministry of Labour, HRSDC, WSIB)  HR can be measured, in part, by performance on incident and accident prevention, RTW results and claim cost reduction That is the HR Dividend

25 25 Priorities, not perfection “ Success is going from failure to failure with no loss of enthusiasm” Winston Churchill

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