When do employee safety violations become criminal?

The question of liability for employee actions is even more important when safety violations turn into criminal charges

 By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Last month, I discussed liability of employers for the actions of their employees in the context of circumstances where individual employees, such as supervisors, were found liable for health and safety violations that led to injuries or death. (Read that blog here.) There have been many cases where both employers and employees have been charged in the wake of workplace accidents.

One workplace tragedy that’s been in the news is the Christmas Eve 2009 deaths of four Toronto construction workers and the serious injury of another after a scaffold on a highrise broke. The employer, Metron Construction, and the scaffold supplier were hit with a total of 34 charges under Ontario’s Occupational Health and Safety Act, and the director of each company and a supervisor were also individually charged with 27 violations.

There was recently another development in this tragic tale, as Metron and three individuals were criminally charged in relation to the deaths, including criminal negligence causing death and criminal negligence causing bodily harm. The charges came under Bill C-45, which allows criminal charges to be laid in workplace accidents but has been little used since it came into effect in 2004.

Though the bill has been praised as a step towards making workplaces safer by pushing employers to be more safety-conscious out of fear of harsher criminal penalties, it makes the question of liability more important. Since employers can’t necessarily control the actions of individual employees who cause unsafe conditions at work, should they be even less liable if those actions turn out to be criminal?

An employer should do what it can to ensure a safe workplace, but if an employee acts in an unsafe manner without the employer’s knowledge, shouldn’t this reduce the employer’s liability? And if the employee’s actions are found to be criminal, how much responsibility should the employer have? It can do some things to ensure a safe workplace, but only so much. An employer can’t expect an employee to act criminally at work, can it?

In the scaffolding case, it was evident the employer had some responsibility in ensuring it had the right equipment and procedures. But what if it had done so and its employees deliberately ignored safety procedures and caused the conditions that resulted in the tragedy? It can take measures afterwards, but by then it may be too late. Can an employer expect to know what its employees will do at work, especially if the conduct turns out to be of a criminal nature?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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