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After the accident: Pitfalls to avoid for employers after workplace accidents #learnthelatest

The obligations on employers, constructors and other workplace stakeholders once a workplace accident occurs are heavy. The Occupational Health and Safety Act (the “Act”) requires that these parties take positive actions immediately from the time that an accident occurs. These actions can have important implications for later legal proceedings. Failing to comply with these obligations is itself a breach of the Act and can lead to legal liability distinct from and in addition to any liability flowing from the accident.

Simply put, navigating the requirements of the Act and the Ministry investigation following a workplace accident is a minefield. An employer can be subject to prosecution for steps it takes following a workplace investigation, regardless of its liability for the accident itself.  Furthermore, an employer can irreparably damage its ability to defend itself against a future prosecution. Even steps that seem straightforward under legislation can have serious, unforeseen consequences. Employers must know their rights and responsibilities throughout the process, and diligently ensure they are followed.  Some of the areas where employers are most at risk are set out below.

Reporting to the Ministry

In cases where a critical injury or fatality results from a workplace accident, the Ministry of Labour must be notified immediately.

The term “critical injury” is defined in legislation. However, in application that definition can be vague, and there are many cases where it may not be immediately apparent whether an injury is critical under the definition. Legal counsel should be consulted immediately if there is any question as to whether an incident meets the definition set out in the Act. Obviously if an injury is not critical then an employer will not want to bring a Ministry of Labour inspector to the worksite along with the disruption that brings, without cause.

However, failing to report an accident that results in a critical injury or fatality is itself an offence under the Act, and one that frequently results in prosecution. In fact, there have been a number of cases where substantive charges are not laid, but where an employer is nonetheless convicted of failing to report the accident.

Consequently, employers must be keenly aware of the subtleties involved in determining whether an injury is “critical” for the purposes of reporting to the Ministry. If in doubt, legal assistance should be sought.  The consequences of failing to report can be significant, regardless of the employer’s liability for the underlying accident.

Securing the scene

It is a serious offence to disturb an accident scene where a death or critical injury has occurred. The general rule is that the scene where such an accident takes place must be preserved until an inspector advises the employer otherwise. There are few exceptions wherein a scene can be altered prior to inspector permission, namely where that alteration is necessary for:

  1. Saving life or relieving human suffering;
  2. Maintaining an essential service or public utility system; and
  3. Preventing unnecessary damage to equipment or other property.

Other than these limited exceptions an accident scene must be preserved.

In a busy workplace where an accident occurs, it can often be difficult to ensure that this obligation is met. Employees seeking to be helpful in the chaotic aftermath of a workplace accident will often significantly alter the scene in an attempt to assist other employees or first responders. Unless that alteration is covered by one of the exceptions above, such action can be an offence for which the employer is liable, or alternatively, render it impossible for an employer to assert the state of a scene in a later proceeding, harming its ability to defend itself.

Much like the obligation to report a critical injury or fatality, a breach of the obligation to maintain the scene of the accident in and of itself an offence under the Act that is frequently the subject of prosecutions. There are many cases where an employer is convicted only of failing to secure and preserve the scene. Compliance with this requirement is essential in the context of any workplace accident that triggers the provision.

Written report of the incident

A written report, signed by the employer, must be submitted to the Ministry within 48 hours of an accident that results in a critical injury or death.

The written report is very important. It must be provided, yet it may be used against the employer in future prosecutions or other enforcement actions. As a result, it must be composed in such a way so as to provide all of the information required by statute, without making any unnecessary or unwanted admissions. Proper editing is essential to making sure that the report does not harm the employer’s interests to the extent possible. A legally compliant report that properly summarizes the incident and provides the necessary information to the Ministry, without making unnecessary admissions and complicating matters, can be invaluable to preventing prosecutions and ensuring a quick Ministry investigation.

It is essential that legal counsel be given the opportunity to review the report before it is sent. This is for two reasons. First, the report itself must comply with the statute’s requirements. If it does not, then the report may be invalid, which may be an offence subject to separate prosecution under the Act.

Secondly, the written report can be used by the Ministry in a prosecution. As a consequence, it is essential that the employer not make any statements that could harm its position at trial. For example, conjecture without evidence or the inclusion of unverified facts could preclude an employer from later arguing a different position should further investigation show those initial assertions unfounded. Legal counsel will be able to spot these potential pitfalls, and deal with them without rendering the report inconsistent with the Act.

Orders and appeals

In the course of an investigation, an inspector will almost invariably issue various orders to the workplace parties. Some of these orders will be procedural orders, which will compel the production of various documents required by the Act. However, inspectors will also frequently issue more substantive orders, requiring compliance and proactive steps to be taken by the employer. For these latter orders, a necessary element of the order is an allegation that there is a breach of the Act which must be rectified.

If the employer intends to challenge an order, it must be appealed within 30 days of being issued. It is critical to note that if an order is not appealed, the validity of the order cannot be challenged in a prosecution. As a result, if the order is founded on an inaccurate assessment of the role of the employer, or on the basis of facts which the employer does not agree with, an appeal is necessary to maintain an employer’s ability to dispute the asserted facts underpinning the order. The caselaw is rife with employers who failed to appeal an order and found their defences to later prosecutions impaired or rendered invalid because they could not challenge the basis for the order.

Assisting the inspector and obstruction

An employer has a legal duty to assist a Ministry inspector. In particular, the inspector should be given access to the premises and assisted where possible. Obstructing an investigator is an offence under the Act.

However, the obligation not to obstruct an investigator is not limitless. It does not require that an employer make admissions or statements beyond what is required by statute. It does not give an inspector carte blanche to investigate and inspect all avenues of the workplace.

The line between compliance and obstruction can be razor thin. It is a difficult line to tread but a critical one. Any statements flippantly made to an Investigator can be used to impugn an employer’s credibility at trial, or worse, be used to show a breach of the Act.  However, behaviour that can be shown to be obstruction will usually be prosecuted zealously by the Crown. It is essential that, in order for an employer to protect its interests while ensuring compliance with its responsibilities under the Act, legal counsel be engaged to ensure that the tightrope between compliance and obstruction is properly navigated.

Conclusion

The above are just some of the many difficulties employers who have experienced a workplace accident can face. While organizations rightly remain focused on accident prevention and ensuring that workplaces are safe so as to avoid prosecution, often overlooked is the possible liability that can arise entirely independently after a workplace accident occurs.

It is essential that the employees responsible for responding to a workplace accident are properly informed on the rights and essential duties of an employer after a workplace accident occurs. Failing to do so can give rise to liability even for an employer completely compliant with the Act, and can also fatally damage an employer’s ability to defend itself from further charges.

At the 17th annual Ontario Employment Law Conference, on June 2, 2016, presented by Stringer LLP and First Reference Inc., an afternoon Breakout Session will focus on responding to workplace accidents, including practical advice on how to deal with Ministry of Labour inspectors, how to prepare an accident response plan, and how to prepare to defend potential charges.

Sold Out 1Please note that the Conference in now SOLD OUT. However, if you follow the hashtag #learnthelatest on Twitter, you will be kept abreast of what is happening at the Conference, including the afternoon Breakout Sessions!

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Stringer LLP

Employment and Labour lawyers at Stringer LLP
Stringer LLP is a leader in Canadian HR law. For over 45 years, they have taken a client-centered approach to responsive service, representing employers with labour relations and employment problems. Their firm’s practice covers a broad spectrum of HR law, including employment law, occupational health & safety, labour relations and arbitration, human rights, workers’ compensation and pay equity, as well as issues under the Accessibility for Ontarians with Disabilities Act. They also provide training, seminars and conferences on the above topics. Read more
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