In partnership with Stringer LLP, First Reference Inc. hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding occupational health and safety due diligence.
We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly until further notice, to provide further clarity on this year’s hot topics based on the questions we received.
Is liability always charged independently to the employer (company) and supervisors or co-worker? Are each solely responsible for the charge? Can liability be passed on to the employer or is it the sole responsibility of the supervisor/co-worker to pay?
In Ontario, the Occupational Health and Safety Act (OHSA) and its regulations provide the legal framework to achieve a healthy and safe workplace by setting out the rights and duties for each workplace party, providing minimum rules to follow and enforcement measures where compliance has not been achieved or has been violated.
As its foundational basis, the Internal Responsibility System (IRS) assigns duties and responsibilities to every workplace party. Accordingly, each party is held accountable to play their role in keeping workplaces safe and healthy. To this end, the employer is responsible for taking every precaution reasonable in the circumstances for the protection of a worker and has therefore the greatest responsibilities with respect to health and safety in the workplace.
Section 25 and 26 of the OHSA, list all the duties and responsibilities of employers, section 27 list the duties and responsibilities of supervisors and section 28 those of workers. Other workplace parties such as contractors, owners, self-employed, suppliers, directors and officers among others, also have duties and responsibilities specified under the law.
Under section 66 of the OHSA, any workplace party, who fails to comply or contravenes the OHSA, can be held liable and can be found guilty of an offence and if convicted is liable to a fine of not more than $100,000 for an individual and $1,500,000 for a corporation, or to imprisonment for a term of not more than 12 months, or to both. Section 55 (40 adds, “[a]ny act or neglect on the part of any manager, agent, representative, officer, director or supervisor of the accused, whether a corporation or not, shall be the act or neglect of the accused.” In this instance, the law clarifies that an offence by a managerial employee would be interpreted as an offence of the employer, and accordingly, the liability shifts to the employer and substantiates that the employer has the greater responsibility when it comes to workplace health and safety.
That said, where a workplace party contravenes the OHSA or regulations, the Ministry of Labour can exercise its enforcement powers against any workplace party who commits an offence under the OHSA and its regulations, especially if the accident or incident is due to that workplace party’s negligent actions or violation of the law. Generally speaking, supervisors and workers are charged individually for non-compliance and cannot pass it on to another workplace party; however, it is possible for employers to be charged in addition to the worker or supervisor based on the employer’s ultimate responsibility for the health and safety of workers at the workplace. Whether or not the employer is also charged will depend, among other factors, on the employer’s due diligence in taking every reasonable precaution to prevent and address the incident leading to the contravention.
As for the worker or supervisor being found liable and passing on the monetary penalty to the employer, the general answer is no. However, that is a matter of negotiation between the worker/supervisor and employer. Subject to the specific circumstance, the employer has discretion to say no.
Learn more about the law and best practices on maintaining a safe and healthy workplace by consulting The Human Resources Advisor, Ontario edition. If you are not already a subscriber, take a 30-day free trial here.
Please Note: This article is prepared for information purposes only. It is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.
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