Employers can’t outsource responsibility for safety: Fine upheld against Nova Scotia company

The Nova Scotia Labour Board has upheld a $1,000 administrative workplace safety fine against Safety First Contracting for unsafe practices at a temporary work site.

An anonymous call came in to the Department of Labour’s hotline to report safety concerns about work being done on a two-lane highway, with one lane closed in a residential area, with a speed limit of 80 km/h.

The officer’s investigation

As the investigating officer, Mark Coffin, approached the scene on March 3, 2022, he saw three mobile bucket trucks on the closed part of the highway. They were running fibre optic cable and slowly moving westbound.

There were three signs visible as Coffin approached from the west — one advising motorists that speed fines double in work areas and two human activity signs.

Coffin saw three employees standing alongside a traffic control half-ton truck. He did not see any cones set up anywhere and did not observe any signs visible to traffic approaching from the east. Coffin spoke with the temporary workplace signer (TWS) on site.

He said he hadn’t placed the cones because the morning had been hectic and one employee had not shown up to work. Coffin asked for a copy of the traffic control plan, but the TWS was not able to provide one.

The person Coffin spoke to had his TWS certification card on him, but one of the other employees did not have the card on him. Also, the toolbox talk and associated hazard assessment and the Plan and Prepare Checklist (PPCL) form had not not taken place before work started that day.

Coffin described these deficiencies as “very bad” and “negligent” based on the fact it was an active worksite with with vehicles driving by and no protection for the workers via traffic cones.

He gave a warning to the individual who did not have his TWS certification card. He issued compliance orders, rather than warnings, for the other issues including lack of signage for east-bound traffic; lack of traffic cones; and the lack of a site plan.

He issued the orders because he believed it was a dangerous situation that warranted more than a warning.

Worker demoted

Safety First acted appropriately, according to the Nova Scotia Labour Board, in response to the orders. A timely compliance notice was returned to the Department of Labour on March 15, 2022.

The TWS who was responsible for the site was demoted the day of the incident by Safety First, which cited his inattention to safety. Interestingly, that worker promptly quit and was immediately hired by a competitor as a TWS.

The company didn’t dispute any of the findings from Collins.

“Throughout the hearing Officer Coffin’s findings were endorsed and gratitude was expressed for his work correcting the serious safety issues,” the board said.

Blame worker, not company: Safety First

But the company said the finger of blame should be pointed at the worker, not Safety First. It questioned the effectiveness of a system that educates employees on their accountability but fails to hold them accountable.

It relied on its TWS, who was trained and certified and had all the necessary equipment and skills, to create a safe environment in the field. He simply chose not to, the company argued.

This was beyond its control, and it’s not possible for an employer to have direct control over employees in the field.

It also pointed out that it has a serious commitment to safety.

“In support of their due diligence defence, they point to their compliance with provincial standards, their internal safety program, the positive feedback received from third parties as well as evidence of the efforts to hold the TWS who was on duty at the temporary workplace accountable through its audit and coaching program,” the board said.

Can’t outsource responsibility: Director

The province’s Director of Occupational Safety had a different take. It pointed out that employers have an overarching responsibility for safety — it cannot be delegated or outsourced entirely to third parties, such as employees or subcontractors.

It also pointed out this was the second offence (it was fined $500 on Sept. 21, 2021) within a three-year period — and the fine was dictated under the regulations as a result. Any penalty that could have been given to the worker would have been in addition to, not instead of, the fine to Safety First.

It referred to an earlier case from the board, also involving Safety First, where the board concluded thusly:

“Due diligence requires not only training, equipment, and an ability to call the superior for directions. The employer must also ensure employees follow the directions and training and use the resources and equipment as required. This might, for example, involve the employer conducting site inspections and spot audits, insisting on receiving written certification from the employees as to compliance or advanced filing of workplace plans for approval or sign-off by the employer. It certainly includes adequate supervision of employees. Many protocols might be adopted. It is simply not good enough to train, equip, and resource and then send into the field. The employer’s duty under the Act and Regulations goes beyond that.”

The board’s ruling

The board spoke positively about Safety First for its commitment to occupational health and safety. It said the company had investing “meaningfully” in its internal safety program.

That included opening their programs to third-party audits, including the Joint Work Initiative (JWI) between Safety First, the Workers Compensation Board of Nova Scotia and the OHS Division of the Nova Scotia Department of Labour.

But it also looked at site audits conducted on Safety First temporary workplaces under the responsibility of the same TWS who was in charge on this project. Many of the same issues were identified during these audits — held in a 10-day period before March 3, 2022 — and “they did not lead to a serious corrective response from Safety First,” the board said.

Those audits made reference to a failure to use cones (Feb. 24); a TCP working onsite without steel-toed boots and no PPCL completed (Feb. 25); and the TWS not signing a side street (March 1.) While Safety First had a progressive discipline policy in place, it elected in those three circumstances to coach rather than discipline the worker, it said.

The worker’s resignation

Safety First expressed “great frustration,” according to the board, that the worker in question was able to quit and immediately find work with a competitor after it demoted him.

“The Board acknowledges this frustration. Nonetheless, the Board does not have jurisdiction to reassign the Penalty to the TWS or to revoke his certification,” it said. “The Board’s only statutory powers on this appeal are to confirm, to revoke or to substitute a different penalty.”

It upheld the $1,000 fine.

For more information see Safety First Contracting Limited (Re), 2022 CanLII 69837 (NS LB)

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