February 14, 2006
Document everything just in case
Pane teaches supervisors how to face legal action
Don’t say anything. Play dumb. Listen intently. In order to protect themselves, construction site supervisors and project managers should take this advice to heart when the labour inspector comes calling with their green book in hand, legal eagles advise.
When an Ontario Ministry of Labour inspector lays charges against an employer under the Occupational Health and Safety Act, documentation of a company health and safety program — and its implementation — is the best defense, says Jacqueline Lund, partner with Matthews, Dinsdale, and Clark LLP.
Begin by documenting the inspection to the best of your ability. “When an inspector comes to call because of something unsafe on your construction site, don’t argue,” says Lund. “Stand and listen and nod your head. If you’re ever in doubt about what an inspector is doing, ask them to validate what they’re doing in the Green Book and have them point to where the material is.
“Although you have no right under the law to accompany the inspector, try to tag along and play dumb; it’s better to say less and listen more.”
Ministry inspectors may want to talk to workers on the site, says Lund.
Make a note of who the inspector is interviewing and speak to those workers yourself directly afterward, documenting what they say. “If the inspector measures something, you measure it too. If the inspector takes a photo, take a photo yourself. Do it now, because you can’t do it later,” says Lund.
Employers who have kept thorough records prior to any incident will be in much better legal shape than those who don’t, says Jim Gardner, provincial specialist, Construction Health and Safety Program with the Ministry of Labour.
“Without due diligence and documentation, it’s very difficult to mount a successful defense.”
While the Ministry of Labour might take up to 364 days to lay formal charges, there’s plenty you can do in the meantime.
“If the inspector gives you orders, or if there are deficiencies noted, deal with them now,” says Lund.
“Then assemble all of the documented proof that you’ve performed due diligence regarding workplace health and safety.”
That might include health and safety plans, safety rules, orientation packages, emergency response plans, first aid procedures, training records, education certificates, disciplinary records, correspondence, work orders—anything that might support the case.
“When questioned about safety, most workers will say that the employer never trained them,” says Lund.
“So if your workers have attended a training session, even a tool box talk, get them to sign off on it in writing.”
Gone are the days when an employer could just file a copy of a cookie-cutter health and safety plan on a high shelf as proof of due diligence, says John Sammut, manager, Training & Advisory, Construction Safety Association of Ontario (CSAO).
“Having the same document photocopied from somewhere else and stapling on a new title page is just not going to cut it any more.”
Fighting a court case with the Ministry of Labour can be expensive, says Lund.
“A five day-trial can cost $50,000 in defense fees. By practicing due diligence, the length of the trial can be much shorter and costs will go down. I defended a company where a 64-year-old worker died on a truck delivery when his boom made contact with hydro lines. The person who trained him was already dead and the safety training occurred a long time ago. We were able to prove that other workers had been trained by that worker, therefore, the worker who died must have received training.
“It took us seven days to prove that. The trial could have been over in less than a day with a single piece of paper.”
The three speakers were part of a panel at the CSAO’s 4th Annual Construction Health and Safety Conference, held in Toronto.
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