1. home and garden
2. home improvement and repair
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from the editors of
Insider
www.OHSInsider.com
ELECTRICAL SAFETY: How to Comply
Volume 8 - Issue 5
MAY 2012
with Group Lockout Requirements
FEATURES
Electrical Safety
1
How to comply with the requirements for
group lockout.
Know the Laws of Your Province (p. 5)
Clean Air
1
How to maintain proper indoor air quality in your
company's facilities.
Know the Laws of Your Province (p. 16)
REGULARS
Brief Senior Management
7
Test Your OHS I.Q.
8
OHS Month in Review
9
Case of the Month
9
The Importance of the Company's 'Safety
Culture'
Must You Report a Workplace Death from
Natural Causes?
20 Years Later: A Look Back at the Westray
Mining Tragedy
Safety Training
4 Tips for Making Safety Training More
Engaging
17
Managing Your OHS Program 18
Implement a Fatigue Risk Management
System
Winners & Losers
Can You Fire a Worker for Swearing on
the Job?
20
TALK TO US
The Insider's goal is to help safety
professionals do their jobs better and
more easily. So tell us what you need!
For example, are you unsure what the
OHS laws require you to do for a certain
hazard? Need help training supervisors
on handling unsafe work refusals?
Share your pressing safety compliance
problems with us by calling (203) 9876163 or emailing [email protected]
Robin L. Barton
Editor
W
orkers can get hurt, including electrocuted, while adjusting or
performing maintenance and repairs on various kinds of energized
equipment, such as
table saws, conveyors, mixers,
EXECUTIVE SUMMARY
etc. That’s why the OHS laws
The Problem: Workers can get electrocuted or otherwise
injured when repairing, maintaining, testing or performing
require energized equipment to
other work on energized machinery or equipment. But
be “locked out” before repair
sometimes an individual lockout procedure isn’t practical.
and maintenance work can
The Solution: Employers may use a group lockout
procedure to ensure that energized machinery or equipment
be done on it. But the use of
is locked out before workers perform work on it.
individual lockout procedures
5 Steps to Take:
1. Determine if group lockout is appropriate;
isn’t always practical. So that’s
2. Develop group lockout procedures;
why several jurisdiction’s OHS
3. Supply personal locks for workers and a lock box;
laws permit so-called “group
4. Train workers on group lockout procedures; and
5. Enforce and update the procedures as necessary.
lockout.” Here’s what you need
Tools: Model Group Lockout Procedure
to do to comply with group
lockout requirements.
continued inside ON PAGE 2
CLEAN AIR: Maintaining Proper Indoor
Air Quality in Your Facility
A
ir pollution isn’t only an outdoor problem. The air inside your company’s
facilities can also be polluted. In fact, the levels of some types of air
pollution can be higher
indoors
than
outdoors.
EXECUTIVE SUMMARY
Maintaining
good
indoor
The Law: Requires employers to protect workers from
air quality (IAQ) is both an
workplace hazards, including indoor air pollution.
environmental and workplace
To Maintain Proper Indoor Air Quality:
1. Control humidity levels and temperature;
safety obligation. We’ll explain
2. Reduce the levels of airborne contaminants;
the legal requirements for IAQ
3. Provide adequate ventilation; and
and how to comply with them.
Defining Our Terms
4. Implement procedures for investigating complaints
about indoor air quality.
Tools: Model General IAQ Inspection Checklist, Model
Health Survey
This article covers the IAQ
requirements for workplaces
in general, not the specialized requirements for workplaces such as mines and
healthcare facilities or parts of workplaces, such as confined spaces or labs.
continued inside ON PAGE 14
2
SAFETY COMPLIANCE
INSIDER
GROUP LOCKOUT PROCEDURE:
Go to the Insider’s online partner site, www.OHSInsider.com, to download a Model Group
Lockout Procedure that you can adapt and use in your workplace.
Board of Advisors
Andrew Cooper, CHSC
University of Alberta
Edmonton, AB
Defining Our Terms
This article focuses on group lockout requirements for equipment operated by
electricity or another form of energy, as opposed to requirements for “electrical
equipment,” that is, equipment designed to generate, supply or transmit electricity,
which has its own lockout requirements.
Cheryl A. Edwards
Heenan Blaikie LLP
Toronto, ON
Norman A. Keith, CRSP
Gowling Lafleur Henderson LLP
Toronto, ON
Ken Krohman
MacKenzie Fujisawa
Vancouver, BC
HOW TO COMPLY
Fred C. Leafloor, CRSP, CHSC
Safety First Industrial Safety Services
Dartmouth, NS
All Canadian jurisdictions address lockout in their OHS regulations in either a
dedicated lockout section or as part of their general sections on machinery
and equipment. The lockout requirements address individual workers locking
out equipment using personal locks assigned to them. But under certain
circumstances, using a group lockout procedure may be more effective or
appropriate than an individual lock procedure. That’s why five jurisdictions—AB,
BC, NB, NL and YK—have specific requirements for group lockout. Although
there are some differences between jurisdictions, you should take these basic
steps to comply with group lockout requirements:
David G. Myrol
McLennan Ross LLP
Edmonton, AB
Yvonne O’Reilly, CRSP
O’Reilly Health & Safety Consulting
Toronto, ON
Wayne Pardy, CRSP
Q5 Systems
St. John’s, NL
Barbara Semeniuk, BSc, CRSP
Purcell Enterprizes
Edmonton, AB
Step #1: Determine if Group Lockout Is Appropriate
All jurisdictions generally require employers to use lockout to ensure that machinery
or equipment can’t be turned on, intentionally or accidentally, while work is carried
out on it or when a guard must be removed. In addition, those jurisdictions with
group lockout requirements specify when group lockout is permitted. (See the chart
on page 5 for the details.)
Your Plain Language Guide to C-45, OHS & Due Diligence
www.OHSInsider.com
EDITOR:
ROBIN L. BARTON
Managing editor:
GLENN S. DEMBY, ESQ.
So you must first determine if a particular situation warrants group lockout as
opposed to standard lockout. In AB, BC, NL and YK, group lockout is permitted
when:
LAYOUT:
TRACY BRIGHTMAN
PRESIDENT AND CEO:
ROB RANSOM
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• A large number of workers (Yukon’s OHS law says three or more workers)
is working on machinery or equipment that must be locked out; or
• A large number of energy-isolating devices (Yukon’s OHS law says more
than four) must be locked out.
In New Brunswick, group lockout is permitted when the standard lockout
procedure is inappropriate for the cleaning, maintenance, adjustments or repairs to
be performed or is inadequate for the protection of a worker. According to the
WHSCC, this rule is generally triggered when three or more workers or five or more
energy isolating devices are involved in a lockout.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
3
Insider Says: Your standards for determining when group lockout
is permitted should be included in your workplace’s general
lockout policy. For more information on compliance with general
lockout requirements, including creation of a lockout policy,
see “Machinery & Equipment: How to Comply with Lockout
Requirements,” July 2011, p. 1.
Step #2: Develop Group Lockout Procedures
If you determine that the circumstances warrant use of group
lockout, you must develop written group lockout procedures
that cover the steps to be used and the responsibilities of
everyone involved in a group lockout. (New Brunswick calls
it a “code of practice” for group lockout.) These procedures
should be tailored to the specific machinery or equipment
involved.
Group lockout procedures should be developed by
a competent person and may need to be developed in
consultation with the JHSC. You should make these procedures
readily available to workers at the location where they’ll be
used, such as posting them by the machinery to which they
relate.
Group lockout procedures involve certain steps that must
be performed by one or more “competent” or “qualified”
workers, that is, workers who are knowledgeable about the
work, the hazards involved and the means to control those
hazards due to education, training, experience or some
combination. These competent or qualified workers could
be supervisors, lead hands or specially trained workers. The
remaining steps are performed by “regular” workers.
Insider Says: For more information on what makes a worker
“competent” or “qualified,” see “Compliance 101: What Makes a
Worker a ‘Competent Person’ under OHS Laws?” Sept. 2008, p. 11.
A group lockout procedure will generally include certain
steps. For example, first, the competent worker(s) will
typically:
• Confirm that all hazardous energy sources have been
effectively isolated.
Then, before individual workers begin work on the locked
out equipment, they must apply their personal locks to the lock
box. And when they’re done, they must remove their personal
locks. When all of the personal locks have been removed and
the competent worker(s) have determined that it’s safe to end
the group lockout, they must remove their personal locks from
the lock box and restore the machinery to its usual operation.
GROUP LOCKOUT PROCEDURE:
Go to the Insider’s online partner site, www.OHSInsider.com, to
download a Model Group Lockout Procedure that you can adapt
and use in your workplace.
Step #3: Provide Personal Locks and Lock Box
For workers to comply with the group lockout procedures, the
company will need to provide them with personal locks, such
as those used in a standard lockout procedure. These locks
should not be combination locks. In addition, a personal lock
should identify the worker to whom it belongs with a unique
mark or identification tag in case a supervisor or co-workers
need to contact that person to remove the lock, such as in
an emergency or at the end of a shift. The employer will also
need to provide a key securing system, such as a lock or key
box, for use by the competent worker(s) in initially securing the
machinery.
Step #4: Train Workers on Group Lockout
Procedures
As with all safety procedures, it’s critical to train workers on
group lockout procedures and ensure that they understand this
training. Who should get group lockout training? Any workers
who may need to participate in a group lockout for a particular
piece of equipment should be trained in the written group
lockout procedure for that equipment.
Group lockout training should be included in your general
lockout training, which should also cover:
• Independently lock out the energy isolating devices;
• The importance of lockouts;
• Secure the keys for these locks, such as in a lock or
key box;
• Legal requirements for lockouts;
• Complete, sign and post a checklist that identifies the
machinery or equipment components covered by the
lockout; and
• Company policy on lockouts;
• The energy forms, hazards and procedures
(administrative and work-related) that must be
followed;
May 2012 © Bongarde
4
• The importance of following lockout procedures;
US Group
Lockout Requirements
• Lockout errors to be avoided, such as assuming the
equipment is inoperable or that the job is too small
to warrant a lockout;
Does your company have facilities in the US? If
so, our sister site SafetySmartCompliance.com
can tell you how to comply with OSHA’s group
lockout requirements.
• The use and care of PPE; and
• Proper use of all tools, including locks.
Step #5: Enforce and Update Procedures as
Necessary
Failing to comply with the company’s group lockout procedures
can have terrible consequences—both for workers and the
company. So it’s critical that you enforce the company’s group
lockout procedures by disciplining workers who violate them.
It’s also important to keep the procedures up-to-date. For
example, you may need to revise them when new equipment
is introduced into the workplace or when the group lockout
requirements in your jurisdiction change. Of course, any time
you change the group lockout procedures, you must retrain
the workers who have to use them.
while he cleaned it. His right arm came in contact with the
spinning blade and was amputated below the elbow. The
sawmill was convicted of several safety offences, including
violating the lockout requirements. It appealed.
Companies have a duty to implement lockout and group
lockout procedures to protect workers while repairing and
maintaining equipment and machinery. But unfortunately,
lockout violations are all too common.
The BC Workers’ Compensation Appeals Tribunal ruled
that the sawmill hadn’t exercised due diligence as to the
lockout requirements. The sawmill was aware that lockout
procedures were a “fundamental safety requirement” and
yet neglected to implement them. For example, it didn’t
have any specific lockout procedures for cleaning the edger
saw or provide a personal lock to the worker to use to
lock out the saw. If there had been a lockout procedure
in place and the worker had been adequately trained, it’s
unlikely that the incident would have happened, concluded
the Tribunal [WCAT-2008-02347, [2008] CanLII 49973 (BC
W.C.A.T.), Aug. 8, 2008].
Example: A sawmill worker in BC turned off the edger
saw he was operating to clean it of sawdust and debris. But
because he didn’t lock it out, the saw blade was still turning
So it’s critical that safety coordinators ensure that their
companies have lockout and group lockout procedures to
ensure that they fulfill this duty.
BOTTOM LINE
What if Group Lockout Isn’t Adequate?
In some circumstances, a lockout procedure may be so complex that even group lockout won’t be sufficient to adequately
protect workers. That’s why AB and NB permit employers to use what Alberta’s OHS law calls a “complex group control”
procedure. Such a procedure may be appropriate due to the:
• Physical extent of the equipment or process being
serviced;
• Length of time equipment or processes will be
isolated; or
• Relative inaccessibility of the energy isolating devices;
• Interdependence and interrelationship of the
components in the system or between different
systems.
• Number of workers involved;
• Number of energy isolating devices to be isolated;
In both jurisdictions, employers must get permission from the government agency in charge of enforcing the OHS laws to
use a complex group control procedure.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
5
KNOW THE LAWS OF YOUR PROVINCE
According to the OHS law in your jurisdiction, group lockout is permitted:
RELEVANT SEC.
OF OHS LAW
FED
AB
OHS regulations don’t include specific group lockout requirements.
1. If a large number of workers is working on
machinery, equipment or powered mobile
equipment or a number of energy-isolating
devices must be secured [Sec. 215(1)].
b.relative inaccessibility of the energy-isolating
devices;
2.In addition, a complex group control process
is permitted if it’s not reasonably practicable
to secure energy-isolating devices using group
lockout because of the:
d.number of energy-isolating devices involved;
a. physical size and extent of the machinery,
equipment, piping, pipeline or process
system;
c. number of workers involved in the work
requiring hazardous energy control;
e. extended length of time of the required
isolation; or
f. interdependence and interrelationship of
the components in the system or between
different systems [Sec. 215.1(1)].
BC
If a large number of workers are working on machinery or equipment or a large number of energy
isolating devices must be locked out [Sec. 10.9(1)].
MB
OHS regulations don’t include specific group lockout requirements.
NB
NL
NT/NU
OHS Code
2009,
Sec. 215
(Securing by
a group) &
Sec. 215.1(1)
(Securing by
complex group
control)
OHS Reg.,
Part 10.9
(Group Lockout
Procedure)
Where the standard lockout procedure spelled out in Sec. 139 is inappropriate for the cleaning,
maintenance, adjustments or repairs to be performed or is inadequate for the protection of a worker
[Sec. 240]. (Note: the OHS law requires the employer to develop a “code of practice” in these
circumstances, which the WHSCC explains is a code of practice for group lockout.)
OHS Reg.,
Sec. 240 (Code
of practice
where lockout
procedure not
appropriate)
Where a large number of workers are working on machinery or equipment or a large number of
energy isolating devices must be locked out [Sec. 134].
OHS Regs. 2012,
Sec. 134
(Group lockout
procedure)
OHS regulations don’t include specific group lockout requirements.
NS
OHS regulations don’t include specific group lockout requirements.
ON
OHS regulations don’t include specific group lockout requirements.
PE
OHS regulations don’t include specific group lockout requirements.
QC
OHS regulations don’t include specific group lockout requirements.
SK
OHS regulations don’t include specific group lockout requirements.
YT
Where three or more workers are working on machinery or equipment that must be locked out or
when more than four energy-isolating devices require lockout [Sec. 3.05].
OHS Regs.,
Sec. 3.05
(Group Lockout
Procedure)
May 2012 © Bongarde
6
Canada’s Premier Conference
for OHS Professionals
1-800-667-9300
Venue
Sheraton Centre Toronto
123 Queen Street
Toronto, Ontario M5H 2M9
Integrating Change & Managing Risk to Improve Your OHS Program
www.ohssummit.ca
October 29-30, 2012 www.ohssummit.ca
Summit Chair
Dylan Short, CHSC, CRM
Managing Partner
The Redlands Group
ohs_summit2012_ad_7.5x3.indd 1
3/7/2012 10:59:26 AM
YOU MAKE THE CALL
Was Residential Care Facility Worker’s Refusal Justified?
What Happened
A worker at a residential care facility for mentally disabled adults claimed to have a medical condition that made her more
likely to suffer serious injury if physically attacked. While she was delivering juice and food, one of the residents hit her.
The facility changed the rules so that two workers always went with the juice cart. But the worker asked to be excused
from this job. When the facility said no, she initiated a work refusal.
Question
Was the worker’s refusal justified?
Answer
No. To read the reasons for the Labour Relations Board’s decision, see the second case under NOVA SCOTIA on page 13.
UPCOMING WEBINARS
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Balancing
Bill
health and safety with human rights (May 2)
160: Ontario OHS Reform (May 16)
Aging
workers & ergonomics (May 30)
New
worker orientations and training (June 7)
Work
refusals (June 20)
Incident
investigations (Aug. 2).
Remember—OHS Insider Pro members can attend webinars for FREE!
For more safety compliance advice, visit us on the web at www.OHSInsider.com
7
BRIEF SENIOR MANAGEMENT
The Importance of the Company’s ‘Safety Culture’
On April 20, 2010, the Deepwater Horizon mobile offshore drilling unit located off the coast of the US in the Gulf of Mexico was drilling a well. A series of events led
to two explosions and a fire that killed 11 workers and injured 16. It also resulted in the largest oil spill in US history, causing significant environmental damage in
the Gulf region. The US Coast Guard participated in the government investigation into this incident. In its part of the final report, it criticized Transocean, the unit’s
owner-operator, for, among other things, failing to instill a culture that emphasizes and ensures safety [US Coast Guard’s Deepwater Horizon Report].
THE PROBLEM
Why should you care about a safety incident that happened in the
US? Because the investigation into the Deepwater Horizon tragedy
illustrates the impact of something over which senior management
has direct control: the company’s “safety culture.” Although the
term “safety culture” gets used a lot and may not have a precise
definition, you should take the concept seriously. What senior
management must understand is that a company’s safety culture
has a real impact on the safety of its workers and its OHS liability.
As the Deepwater Horizon case illustrates, government agencies
investigating safety incidents will consider not only tangible things
such as the company’s OHS program and its safety policies but
also its less tangible safety culture. And failing to establish a
corporate culture in which worker safety is a priority can have farreaching impacts.
THE EXPLANATION
A safety culture is essentially a mindset, a group of shared values
among all stakeholders and a way of looking at the workplace and
making safety a priority. According to a University of Illinois study,
in a workplace with a safety culture, everyone values and prioritizes
safety and:
• Is committed to personal responsibility for safety;
• Acts to preserve, enhance and communicate safety concerns;
• Strives to actively learn, adapt and modify their behaviour
based on lessons learned from safety errors and incidents; and
• Is rewarded in a manner consistent with these values.
The OHS laws don’t require employers to have safety cultures.
But having a safety culture is an implied part of due diligence.
Explanation: If the Crown proves that a company committed a
safety violation, the liability of the company (and perhaps its senior
management) will turn on whether it showed due diligence—that
is, took all reasonable steps to prevent the violation. The court
will consider the company’s safety culture—or lack thereof—in
deciding if it met this standard. For example, when two refinery
workers removed the locking pin from an overflow valve, steam
and water were released, causing one of the workers to sustain
severe burns. The court convicted the refinery, criticizing it for
having a “complacent culture”—that is, “if there was no accident,
the workplace was thought to be safe” [R. v. Petro-Canada, [2008]
ONCJ 558 (CanLII), Nov. 5, 2008].
The Coast Guard found that Transocean lacked a safety culture
because:
• Workers were afraid of reprisals if they came forward with
safety concerns or had a safety incident;
• Company leaders failed to commit to compliance with the
International Safety Management Code, creating a culture
that could be described as “running it until it breaks,” “only if
it’s convenient,” and “going through the motions”;
• Emergency drills were held at the same time on the same
weekday and conduct during them was unacceptable; and
• Transocean failed to ensure that its onboard management
team and workers had sufficient safety training and
knowledge. For example, the master said the training he
received on the Safety Management System simply consisted
of viewing a PowerPoint presentation, whose content he
couldn’t remember.
The Coast Guard concluded that Transocean’s poor safety
culture resulted in continued maintenance deficiencies, training
and knowledge gaps, ineffective decision-making and emergency
preparedness weaknesses.
THE LESSON
The development of a safety culture starts at the top. That is,
senior management sets the tone for the workplace. So you should
ensure that an effort is made to:
•
Communicate to supervisors and workers management’s
commitment to safety;
•
Clearly communicate safety policies and procedures to
workers and adequately train them on compliance with such
policies and procedures;
•
Actively monitor whether policies and procedures are being
obeyed;
•
Consistently enforce the rules including, when necessary,
disciplining workers for infractions; and
•
Reward workers for compliance and safe work behaviours.
INSIDER SOURCE
“Report of Investigation into the Circumstances Surrounding the
Explosion, Fire, Sinking and Loss of Eleven Crew Members Aboard
the Mobile Offshore Drilling Unit DEEPWATER HORIZON,” US Coast
Guard, April 2011
May 2012 © Bongarde
8
test
your
OHSI.Q.
Must You Report a Workplace Death from Natural Causes?
SITUATION
A bank worker enters the bank’s bathroom and finds the manager, who has a history of heart problems, collapsed on the floor, unconscious
and not breathing. He alerts his co-workers, who try to resuscitate the manager. The police and paramedics also try to save the manager.
But he dies, apparently of a heart attack. At first, the bank decides not to report the manager’s death to the federal safety authorities.
However, a week later, it changes its mind and reports the fatality. A federal health and safety officer cites the bank for failing to report a
worker’s death within 24 hours in violation of federal OHS law.
QUESTION
Did the bank violate the workplace safety
reporting requirements?
A. Yes, because employers must report any incident for which the police
are called.
B. Yes, because the reporting requirements apply to any worker death
in the workplace.
officer must be notified of a worker’s death to fulfill the duty to
investigate it. Thus, the Tribunal concluded that the manager’s
death, which occurred in the workplace and while he was at work,
triggered the reporting requirements.
Insider Says: For more information on complying with the OHS
reporting requirements, see “The Duty to Report: What Kinds of
Workplace Incidents Must You Report?” Aug. 2008, p. 1.
C. No, because the manager appeared to have died of natural causes.
D. No, because the manager wasn’t working when he died.
ANSWER
B. The bank violated the reporting requirements, which apply to
any worker’s death in the workplace, such as the manager’s death.
EXPLANATIONS
This situation is based on an actual federal case in which the OHS
Tribunal upheld a federal health and safety officer’s citation to a
bank for not reporting the death of its manager within 24 hours.
Sec. 15.5 of the federal OHS Regulations requires an employer to
report “the death of an employee” to a health and safety officer
within 24 hours of becoming aware of the death. In addition, Sec.
125(1)(c) of the Canada Labour Code requires employers to report
to the authorities all “accidents…and other hazardous occurrences
known to the employer.” The bank argued that it didn’t have to
report the manager’s death because it didn’t occur because of an
accident or hazardous situation in the workplace.
But the Tribunal disagreed. It noted that the OHS law requires
health and safety officers to investigate every death of a worker
that occurs in the workplace or while the worker is working.
The ordinary meaning of this language includes deaths that are
determined to be from natural causes. And a health and safety
WHY WRONG ANSWERS ARE WRONG
A is wrong because although the federal OHS law does require
employers to report various types of incidents, it doesn’t require
reporting of an incident just because the police were called. For
example, in addition to worker fatalities, federally regulated
employers must report:
•
A disabling injury to two or more workers;
•
A worker’s loss of a body member or a part thereof; and
•
A fire or explosion.
C is wrong because the cause of a worker’s death is irrelevant.
Federal health and safety officers must investigate all worker
deaths, regardless of their cause. In addition, the cause of a
worker’s death may not be immediately apparent. So what may
seem to be a death by natural causes could, in fact, be workrelated. For example, in this case, although it appeared that the
manager died of a heart attack, an investigation could’ve revealed
that he’d been overcome by a toxic gas.
D is wrong because although the manager wasn’t working at the
very moment he died, he was in the workplace and on duty at the
time. Thus, his death triggered the reporting requirements despite
the fact it didn’t happen while, say, he was at his desk or speaking
to a customer.
SHOW YOUR LAWYER
Re Royal Bank of Canada, [2012] OHSTC 5, Feb. 3, 2012
For more safety compliance advice, visit us on the web at www.OHSInsider.com
9
OHS Month in Review
A roundup of important new legislation, regulations, government
announcements, court cases and board rulings
CASE OF THE MONTH
20 Years Later: A Look Back at the Westray Mining Tragedy
Fatal safety incidents happen too often. Most don’t even make the news
or do so in a merely trivial way. But sometimes a safety tragedy raises
public awareness and changes the landscape of workplace safety. The
Christmas Eve scaffolding collapse in Ontario that drove the ongoing
Ontario OHS reform movement is a recent example. The Westray mining
disaster in Nova Scotia is an older example. May 9th marks the 20th
anniversary of Westray. Here’s a look back at this tragedy and its impact
on workplace safety across Canada.
THE CASE
The Incident: On May 9, 1992 at 5:20 am, methane gas and then coal
dust exploded in a Nova Scotia coal mine, killing 26 workers. For several
days, mine rescuers searched for survivors in extremely dangerous
conditions. After they discovered the bodies of 15 miners, the search and
rescue mission was changed to a search and recovery operation. But
when underground conditions worsened, they were forced to abandon
recovery efforts, entombing the bodies of 11 miners deep in the mine.
The Investigation: The Nova Scotia government conducted a Royal
Commission of Inquiry into the Westray disaster and the related safety
issues. The Commission found that the explosions were caused by sparks
struck by the cutting bits of the continuous miner working in one section
of the mine. But the Commission noted that the conditions at Westray
were of greater significance to what happened than was the source of
ignition. It concluded that had there been adequate ventilation, treatment
of coal dust and training as well as “an appreciation by management
for a safety ethic, those sparks would have faded harmlessly.” The
inquiry’s 1998 report included numerous recommendations on, among
other things, training, the role of the mine’s JHSC, incentive programs,
ventilation, dealing with methane and coal dust, and mine rescue
procedures.
The Charges: The mining company was charged with 52 OHS violations,
34 of which were later dismissed by the court. In 1993, prosecutors
dismissed the remaining safety charges out of concern that they might
jeopardize future criminal charges. In fact, two of the mine’s managers
were charged with 26 accounts of manslaughter and criminal negligence
causing death. But almost four years after the disaster, these charges
were stayed by the trial judge because prosecutors had deliberately
failed to disclose key evidence to the defence. The Nova Scotia Court
of Appeal ordered a new trial, which was upheld by the Supreme Court
of Canada. However, prosecutors dropped the charges, claiming there
wasn’t enough evidence to secure convictions.
The Aftermath: Because of the failure to successfully prosecute
the mine’s owners and managers and in light of the Commission’s
recommendations, the government passed Bill C-45, which amended
the Canadian Criminal Code to make it easier to hold companies and
corporate managers and directors liable for criminal negligence for failing
to protect a person doing work if this failure was the result of wanton
or reckless disregard for life or safety and caused death or serious
bodily harm to the worker or a person affected by the work. (For more
information on C-45, go the OHS Insider’s C-45 Compliance Center.)
ANALYSIS
Frédéric Le Play, a French sociologist and inspector general of mines
of France, once said, “The most important thing to come out of a
mine is the miner.” It would be great if all mining companies shared
this perspective but that’s not the case. There have been other mining
tragedies in Canada since Westray, although none have had as many
victims. But incidents in mines elsewhere have been as bad—or worse.
For example, in China, 172 miners died in a coal mine flood in 2007 and
a mine blast killed 214 miners in 2005. And in the US, an explosion in a
West Virginia coal mine killed 29 workers in 2010.
Arguably, mining in Canada has gotten safer since Westray. For example,
the BC mining industry hasn’t experienced a mine operations fatality
since Sept. 2009, the longest period of time without fatalities since 1898.
Are these improvements tied to changes made in mining since Westray?
It’s unclear. But what is clear is that improvements in workplace safety
shouldn’t be driven by horrible tragedies. Companies must be proactive
and take steps to prevent disasters like Westray from ever occurring.
And safety professionals should be leading the way.
May 2012 © Bongarde
10
LAWS & ANNOUNCEMENTS
FEDERAL
March 10: Changes Proposed to TDGA Regulations
The government proposed changes to the Transportation of Dangerous Goods Regulations in Part 1 of the Canada Gazette. You have until May 24 to
comment on the 11 proposals, which include:
• Change in the definition of “person” and the addition of a definition for “organization” to align the Regulations with the TDGA
• Clarification of requirements for outer packaging for aerosols in small quantities
• More precise indication of filling requirements for standardized and non-standardized means of containment
• Option of affixing dangerous goods safety marks required by the IMDG Code for the transport to or from a ship, harbour or sea terminal. Feb. 29: Small Business Study on Workers’ Comp Boards
The Canadian Federation of Independent Business conducted a study on the impact of the country’s workers’ comp boards on small businesses. The
study examined cost of premiums, claims management, experience rating, classification and assessment, coverage, long-term fiscal sustainability and
customer service. PE’s board received the top overall score, followed by NB and BC. The ON and QC boards were at the bottom.
March 6: Train Derailment Kills Three Workers
Three workers were killed and 45 passengers were rushed to the hospital after a VIA Rail train derailed. The Transportation Safety Board reported that
the train entered the crossover from one track to the other at approximately 67 mph—more than four times the maximum authorized speed. Transport
Canada is also investigating the incident under the Canada Labour Code.
Feb. 28: Safety Hazards at Medical Marijuana Grow-Ops
Safety codes officers in Calgary have found many safety codes violations at a federally licensed medical marijuana grow operation, including evidence
of a previous fire, illegal electrical wiring, serious mould growth, spider mite infestation on plants, and toxins and chemicals. Less than a month ago, an
inspection at another Health Canada-licensed location also found multiple safety infractions.
ALBERTA
LAWS & ANNOUNCEMENTS
CASES
March 15: Report on Chopper Crash
Cites Lack of Helmet Policy
The Transportation Safety Board
released its final investigation report
into the crash of a helicopter on Lesser
Slave Lake in which the pilot, who was
the sole occupant, died from head
injuries. The report noted that “the
lack of regulations or policies requiring
helicopter pilots to wear helmets places
them at greater risk of incapacitation
due to head injuries following a
ditching or crash.”
Employer Penalized $275,000 for Apprentice Mechanic’s Death
A third-year apprentice heavy duty mechanic was run over by a disabled heavy haul truck while attempting to
tow it to the maintenance shop. He died from his injuries. His employer was convicted of an OHS violation. The
court fined it $2,500 and ordered it to pay $212,500 to Injury Alberta and $60,000 to the Alberta Worker’s Health
Centre [Finning International Inc., Govt. News Release, Feb. 16, 2012].
May 26: Occupational Rehab
Forum 2012
The Alberta Occupational Rehabilitation
Forum—Improving Clinical and ReturnTo-Work Outcomes will take place
in Edmonton on May 26, 2012. The
Forum provides opportunities to share
knowledge gained through research
conducted with injured workers in
Alberta and cultivate new projects
aimed at improving their clinical and
return-to-work outcomes.
Labourer’s Conduct as to Drug & Alcohol Test Justified His Firing
A labourer carelessly used a forklift to move a heavy and expensive toolbox, which fell and was destroyed. The
employer told the labourer that he had to submit to a drug and alcohol test. He agreed to take it the next day.
But at the lab, he was obnoxious, obscene, belligerent and aggressive. And he tried to sabotage the tests. So he
was fired. The arbitrator upheld his termination. The labourer’s conduct was so offensive, an embarrassment
to the employer’s representatives who were with him at the lab and detrimental to the employer’s image, that
the employment relationship couldn’t be restored. In short, no employer should have to tolerate the kind of
conduct he displayed, concluded the arbitrator [Finning (Canada) v. International Association of Machinists and
Aerospace Workers, Local Lodge 99, [2012] CanLII 12066 (AB GAA), March 3, 2012].
Worker’s Left Shoulder Injury Not Tied to Work-Related Right Shoulder Injury
A worker suffered a rotator cuff injury to his left shoulder. He claimed that the injury was caused by either a work
incident in which he injured his right shoulder or the WCB-approved rehab he underwent for the right shoulder
injury. The Appeals Commission disagreed. He didn’t complain about problems with his left shoulder until six
months after the incident that injured his right shoulder. And the medical evidence doesn’t support his claim
that he injured his left shoulder in that incident or while doing rehab for the right shoulder injury [Decision No.:
2012-229, [2012] CanLII 11166 (AB WCAC), March 8, 2012].
Worker’s Injury Caused by Ergonomically Incorrect Work Station
A worker claimed that he suffered a strained neck and muscle spasms due to performing computer work at a
station that wasn’t ergonomically correct. His claim was initially denied. But on appeal, the Commission ruled
that his claim was covered by worker’s comp. The worker suffered a personal injury as a result of working at
an ergonomically incorrect work station over a period of years [Decision No.: 2012-133, [2012] CanLII 7823 (AB
WCAC), Feb. 8, 2012].
LAWS & ANNOUNCEMENTS
QUÉBEC
March 7: New Study on Styrene Exposure Released
In a new study published by the IRSST, researchers found that styrene exposure in the fibreglass reinforced plastics industry sometimes exceeded
the standards prescribed by the Regulation respecting occupational health and safety. They also found that volunteers exposed to styrene at average
concentrations of 137 mg/m3 showed a frequency of irritation symptoms higher than the control group.
March 15: Scaffolding Collapse Caused by Overloading
As workers were dismantling the wall of a condo, the scaffolding collapsed. One worker died and three others were injured. The CSST determined that
overloading was one of the causes of the incident. To avoid similar incidents, the CSST reminded contractors and employers to:
• Evaluate the mass of various materials to be handled during dismantling and reconstruction
• Know the load capacity of scaffolding
• Develop a method of dismantling walls that meets the equipment’s capacities.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
11
LAWS & ANNOUNCEMENTS
ONTARIO
May 1: New Electrical Safety Code Took Effect
An updated version of the Ontario Electrical Safety Code took effect May 1.
The 25th edition of the code establishes safety standards for installing and
maintaining electrical equipment, including the prevention of fire and shock
hazards. All electrical installations in Ontario must comply with the code.
March 13: New Fact Sheet on Preventing Infectious Diseases at
Construction Sites
The MOL released a fact sheet on preventing infectious diseases at
construction projects. Construction workers are often at risk from
exposure to infectious diseases due to poor sanitary conditions of toilets
and clean-up facilities, which is a major cause of disease and can be a
serious occupational health risk.
Feb. 29: Union Calls for Criminal Charges in Mine Deaths
The United Steelworkers is calling for criminal charges against officials and
management for the deaths of two workers last year at the Stobie mine. It
also demanded that the government immediately establish a commission
of inquiry into mine safety. The union’s own investigation into these
deaths concluded that Vale management ignored ongoing problems with
flooding in the mine. The USW report made 165 recommendations to
improve safety at Stobie and other Vale mines.
March 9: WSIB Releases Strategic Plan
The WSIB released its Strategic Plan for 2012-2016, which it hopes will help
it become a modern organization. The WSIB’s 2012-2016 Strategic Plan
aims to deliver better service to workers and employers in a financially
responsible manner. The WSIB has refocused on supporting workers in
early recovery and a return to their work and lives, while making it easy
for employers to get back to business.
Mar. 1: Construction-Focused Inspection Blitz Began
Throughout March, MOL inspectors visited construction projects
employing workers in high-rise and low-rise formwork, masonry, siding
and built-up roofing work to ensure that:
• Work areas were safe from hazards that cause dangerous slips, trips
or falls
• Workers were using fall protection systems properly and equipment
such as ladders, platforms and scaffolds.
CASES
Two OHS Charges Against Fire Department Dismissed
When volunteer firefighters responded to a restaurant fire, a woman said
her boyfriend was trapped in the apartment upstairs. So two firefighters
went inside. One of them “lost air.” They were unable to get out and
had to be rescued. The MOL charged the department with three OHS
violations under the general duty clause. The defence asked the court
to dismiss the charges. The court agreed that there was no evidence to
support two of the charges and dismissed them. But it refused to dismiss
the charge relating to failure to set up an accountability system to track
firefighters entering a burning building. So the trial will continue on that
remaining charge [R. v. Meaford and District Fire Department, Court File
No.: County of Grey 1060-999-10-396, Feb. 23, 2012].
Worker Develops Anxiety Disorder from Stress of Possible
OHS Liability
A worker developed an anxiety disorder from the stress of being the
supervisor in charge of asbestos response and removal. She said the MOL
had criticized her handling of asbestos removal projects and threatened
her with a personal fine. When she tried to return from medical leave, she
claimed her employer didn’t try to accommodate her mental disability.
The Human Rights Tribunal found that the employer failed to fulfill its duty
to reasonably accommodate the worker. Her doctor said she couldn’t
handle a job with possible health and safety liability. But the employer
didn’t make any effort to determine what kind of employment she was
capable of and where the line between unacceptable and acceptability
risk of liability lay. In addition, there were other supervisory positions
it could’ve offered the worker but didn’t [Fair v. Hamilton-Wentworth
District School Board, [2012] O.H.R.T.D. No. 336, Feb. 17, 2012].
Slapping Co-Worker Didn’t Justify Immediate Termination
A worker slapped a co-worker and was fired despite having a clean record and
no history of violence or anger management problems. He sued for wrongful
dismissal. The court ruled that although workplace violence was a serious issue,
it was difficult to see how the worker’s conduct justified outright dismissal. He’d
never caused any other problems and was a conscientious worker. And the
employer barred violence in its employee handbook but didn’t train workers on
it. So the court ordered the employer to pay the worker more than $12,000 in
damages [Shakur v. Mitchell Plastics, [2012] ONSC 1008 (CanLII), Feb. 13, 2012].
Arbitrator Reinforces Worker’s Duty in Accommodation Process
A worker who asked her employer to accommodate her mental illness refused
to provide the medical information it requested, claiming the requests violated
her privacy rights and were harassment. An arbitrator said a worker may refuse
to disclose confidential medical information but there may be consequences. An
employer is entitled to information to determine whether the worker needs an
accommodation and, if so, the appropriate accommodation. The worker has taken
“a rigid and unrealistic view that she has an absolute right to the accommodation
she has identified without full appropriate medical disclosure,” said the arbitrator. It
concluded that the employer’s approach to the worker’s disability and accommodation
was reasonable while it was unreasonable for the worker to refuse it access to her
medical information for that limited purpose [Complex Services Inc. v. Ontario Public
Service Employees Union, Local 278, [2012] CanLII 8645 (ON LA), Feb. 22, 2012].
Epilepsy Not Reason for Crisis Worker’s Termination
A mental health association fired a probationary crisis worker who had epilepsy,
saying that it wasn’t a good match. She claimed disability discrimination. The
arbitrator dismissed her complaint. The employer asked the worker if she needed
an accommodation because of her epilepsy and she said no. Based on her job
performance, it was clear that she froze under pressure. Crisis workers can’t freeze
under the stress that can arise during crisis hospital calls, an essential part of the
worker’s job. Thus, the employer didn’t violate her rights and had a legitimate
reason for terminating her employment [Canadian Mental Health Association v.
Ontario Public Service Employees Union, Local 133, [2012] CanLII 7443 (ON LA),
Feb. 21, 2012].
Worker’s Electrocution Costs Employer $100,000
Two workers in the mechanical room of a condo tower took down a large exhaust fan.
As they were moving it, a light fixture hit the fan. Part of the light fixture was damaged,
allowing its electrical charge to contact the fan. The worker who was holding the fan at
the time was fatally electrocuted. The company pleaded guilty to failing to ensure that
the fan was lifted, carried or moved in a way that wouldn’t endanger a worker and
was fined $100,000 [New Water Plumbing Inc., Govt. News Release, March 5, 2012].
Village Fined $75,000 after Volunteer Fireman Dies During Training
Members of a village’s paid volunteer fire department were participating in ice water
rescue training. They were told to swim out to a moving sheet of ice, climb it and ride it
down the lake. One fireman was pushed by the ice floe under its surface and trapped
for about four minutes. He later died. An MOL investigation determined that there
was no rescue equipment readily available to pull the worker onto shore. The village
pleaded guilty, as an employer, to failing to ensure that adequate rescue equipment
was available for the ice water rescue training exercise. The court fined it $75,000
[Corporation of the Village of Point Edward, Govt. News Release, March 6, 2012].
Collapse of Steel Form’s Wall Costs Employer $55,000
One worker was standing beside a steel form using a remote control to operate
an overhead crane to pour buckets of concrete into it. Without warning, one
side of the form detached and fell on him. He suffered multiple fractures and a
punctured lung. The MOL found that the welds used to hold the form together
were inadequate given the weight of the wet concrete being poured into it. The
company pleaded guilty to failing to ensure that the form was designed and
constructed to resist all loads and forces which were likely to be applied to it. The
court fined it $55,000 [Con Cast Pipe Inc., Govt. News Release, March 15, 2012].
Manufacturer Fined $50,000 for Worker’s Hand Injury
A worker at a manufacturer’s plant cleaning out a hopper reached a hand into
it while an auger inside was slowly rotating. His hand was injured when it was
caught by the auger and trapped against the hopper wall. The manufacturer
pleaded guilty to failing to ensure that the auger had stopped rotating before the
worker began cleaning the hopper. The court fined it $50,000 [Surteco Canada
Ltd., Govt. News Release, March 15, 2012].
May 2012 © Bongarde
12
CASES
LAWS & ANNOUNCEMENTS
BRITISH COLUMBIA
F­ eb. 28: 2011 OHS Penalties Exceeded $4.8 Million
WorkSafeBC released its 2011 enforcement report, which indicates that last year,
it imposed 352 administrative penalties totalling $4,883,489 against employers
for OHS violations. It imposed these penalties, which ranged from $700 to
$250,000, against 289 individual employers. Sixteen penalties involved workrelated deaths.
March 5: Former Premier Faulted in Roofer’s Death
A WorkSafeBC report says former Premier Gordon Campbell didn’t properly
oversee safety measures at his summer home where a roofer fell to his death
through a skylight opening. WorkSafeBC says although Campbell was considered
the prime contractor on the job site, he didn’t meet that role’s responsibilities. The
report also says the roofing contractor didn’t establish safe work procedures for
roof openings or provide adequate supervision and enforcement.
March 7: Injuries to New & Young Workers on the Decline
According to WorkSafeBC’s Effectiveness Measures Report for the fourth quarter
of 2011, injuries to new and young workers have been reduced since changes
were made to the OHS Regulation in Jan. 2007 to require employers to provide all
young or new workers with a safety orientation and training. From 2008 to 2009,
there was a 28% decrease in injuries to young workers; from 2009 to 2010, the
injury rate decreased by 12% for young males and 8% for young female workers.
March 13: New Guideline on Traffic Paddles
WorkSafeBC released a new guideline on the allowance of LED or other visible
lights on traffic paddles. Such use is permitted as long as it doesn’t compromise
the paddle’s visibility or effectiveness. Lighted paddles have been shown to
improve visibility and safety.
Case Will Continue Against Safety Trainer for Using Pictures of
Naked Women
A female worker claimed that during a safety training session in
which she was the only woman, the instructor showed pornographic
pictures of naked women. The Ministry of Forests removed him from
the list of approved trainers but later reinstated him. So the worker
filed a sexual harassment complaint against the instructor and the
Ministry. The Human Rights Tribunal dismissed the complaint against
the Ministry but ruled that the case against the instructor could
proceed. He admitted using pictures he’d scanned from Playboy to
“relax” the mainly male training class. Thus, the worker’s complaint
had a reasonable likelihood of success [Pitcher v. BC (Ministry of
Forests), [2012] BCHRT 70 (CanLII), March 12, 2012].
Worker Fired for Safety Violations—Not Being Gay or Disabled
After a worker was fired, he claimed discrimination based on disability
and sexual orientation (he’s gay). The Human Rights Tribunal noted
that although the worker claimed the company president “hated”
homosexuals, there was no proof of that bias or that the bias led
to his firing. In fact, given that the worker had been married twice
and had dated a female co-worker, his employer thought he was
heterosexual. There was also no evidence that the worker’s injury
played any role in his termination. The company provided proof that
it had fired him for committing safety violations, including one the
day he was canned. Thus, the Tribunal dismissed the complaint [Cote
v. Cantest Solutions Inc., [2012] B.C.H.R.T.D. No. 46, Feb. 29, 2012].
NEW BRUNSWICK
LAWS & ANNOUNCEMENTS
CASES
March 3: Preventing MSIs by Design
WorkSafeNB released a pamphlet on ergonomics and how to
prevent MSIs by design.
Injured Assistant Was Canada Post Employee for Workers’ Comp Purposes
An “ergonomic paid assistant” for Canada Post was injured on the job and filed a
workers’ comp claim. Canada Post challenged her claim, arguing that she wasn’t its
employee but an independent contractor. The Appeals Tribunal ruled that she was a
Canada Post employee. And the Court of Appeal upheld that ruling. It was reasonable
for the Tribunal to conclude that she was an employee because she had little control
over her work environment and was under the direct control of a Canada Post
employee [Canada Post Corp. v. Carroll, [2012] NBCA 18 (CanLII), Feb. 23, 2012].
Feb. 21: Hazard Alerts Issued
WorkSafeNB issued three hazard alerts on:
• Blocking Stand Jack s
• Side Loads
• Demolition Project s.
March 11-17: Farm Safety Week
In honour of Canadian Agriculture Safety Week, WorkSafeNB
has a number of publications available related to farm safety,
including:
• Guidelines for Potato Growing Safet y
• Farm Safety Guide
• Worker Dies After Being Struck by Hay Bale (Hazard Alert)
• Farm Accident Kills Worker (Hazard Alert).
LAWS &
ANNOUNCEMENTS
NL
March 9: Separate Offshore
Safety Agency for NL under
Consideration
The federal government is still
considering whether a separate
offshore safety agency in
Newfoundland and Labrador
would be best for oil workers.
The province has supported
the call for safety oversight
separate from the CanadaNewfoundland and Labrador
Offshore Petroleum Board.
Nurse’s Illness Caused by Exposure to Mould at Work
A nurse at a nursing home reported respiratory problems, headaches, fatigue and other
symptoms. Her doctor concluded that her illness was from “chronic workplace mould
exposure.” Her workers’ comp claim was denied. But on appeal, it was approved. The
Appeals Tribunal ruled that there was no evidence to suggest that the nurse’s allergic
reaction was created by anything other than toxic mould exposure in the workplace. Her
symptoms increased when she entered known problems areas at the nursing home and
quickly receded when she left work. Thus, it was more likely than not that the workplace
caused her illness [Re: 20116278, [2012] CanLII 7255 (NB WHSCC), Feb. 6, 2012].
CASES
Mining Company Charged in Fatal Fall Incident
Two mining workers fell about seven metres from a platform near chains used to control the speed of ore flowing from
the plant’s crusher to rail cars. One died; the other was injured. The Occupational Health and Safety Branch charged the
mining company with five violations of the OHS Act for failing to ensure that adequate fall protection was in place, the
equipment was safe and staff were properly trained and aware of potential hazards [Iron Ore Company of Canada, Govt.
News Release, Feb. 23, 2012].
New Evidence of Worker’s Exposures Warranted Reopening Claim
A worker claimed that he suffered from nasal polyps and sinusitis caused by exposure to coal and stone dust during his
employment as a mechanic in a mine. His workers’ comp claim was denied. The worker then provided new information
about his exposure to “shotcrete,” a cement-based product sprayed on the mine’s walls. The Tribunal ruled that this
new evidence warranted reopening the decision on his claim. It found that his condition was an occupational disease
covered by workers’ comp. The mine appealed. A court upheld the Tribunal’s decision. It was reasonable for the Tribunal
to conclude that this case was appropriate for reconsideration and to find that the worker’s exposure to shotcrete caused
his medical condition, said the court [Enterprise Cape Breton Corp. v. Southwell, [2012] N.S.J. No. 107, March 1, 2012].
For more safety compliance advice, visit us on the web at www.OHSInsider.com
13
NOVA SCOTIA
LAWS & ANNOUNCEMENTS
CASES
May 12: New Environmental Regulations
on Contaminated Sites
The province introduced new regulations
for cleaning up contaminated sites. The
regulations, which will take effect in July
2013, address recommendations made
by the auditor general in 2010 and meet
a target in the Environmental Goals and
Sustainable Prosperity Act. They:
• Ensure that site professionals are
qualified to do the work
• Allow property owners to get a
release from further enforcement
once a site’s cleaned to provincial
standards
• Support creating an online registry
of contaminated properties.
Sole Proprietor Penalized $25,000 & Ordered to Do Volunteer Work for Fatal Fall
A worker fell from a roof under construction and later died from his injuries. He’d been wearing a fall arrest
harness but it wasn’t connected to his life line. His employer, the sole proprietor of the carpentry company,
pleaded guilty to a fall protection violation. At sentencing, the court noted that the employer had made some
attempts to comply with the fall protection requirements, including providing the harness and life line, and did
show remorse. But the employer also had a prior fall protection violation. So it ordered him to pay a $10,000
fine and $15,000 to the Educational Trust Fund. It also ordered him to do 200 hours of volunteer work for
Habitat for Humanity [R. v. Rusk, [2012] NSPC 17 (CanLII), March 16, 2012].
Worker’s Refusal Was Emotional—Not Based on Reasonable Grounds
A worker at a residential care facility for mentally disabled adults claimed to have a medical condition that
made her more likely to suffer serious injury if physically attacked. While delivering juice and food, she was
hit by one of the residents. The facility changed the rules so that two workers always went with the juice
cart. But the worker asked to be excused from this job. When the facility said no, she initiated a work refusal.
An OHS officer investigated and ordered her to resume accompanying the juice cart. She appealed. The
Labour Relations Board said the facility had implemented adequate measures to protect workers from violent
residents. The Board concluded that the worker’s perception of the danger of manning the juice cart was
emotional and not based on reasonable grounds [OHS-0342, [2012] NSLB 66 (CanLII), Feb. 21, 2012].
LAWS & ANNOUNCEMENTS
March 2: Minimum Wage for Construction Workers to Rise
Minimum wages for construction workers will go up 3% this year. Based on
recommendations from the Construction Industry Wages Consultation Panel,
wages for the industrial, commercial and institutional construction sectors will
increase 3% on June 1 and again on Jan. 1, 2013. Wages in the heavy construction
sector will see two consecutive annual increases of 3%, with the first raise taking
effect on May 1.
March 2: Welding Hazard Alert Issued
In Sept. 2011, a small business operator suffered
severe burns when his clothing caught fire while
welding. So to raise awareness of the dangers of hot
work and the precautions to take when using welding
and cutting torches, the WCB issued a hazard alert
for welders.
LAWS &
ANNOUNCEMENTS
SASKATCHEWAN
March 3: Funding for Farm Safety
Initiatives Announced
The government announced new
funding to the Saskatchewan
Association of Agricultural Societies
and Exhibitions (SAASE) for
agriculture safety and education
programs. $30,000 in annual funding
over the next three years will go to
Farm Safety Day Camps, which
promote safety on the farm and
train students on how to respond to
injuries while on the farm. Another
$15,000 will go to SAASE's Ag on
the MOOve agriculture awareness
project.
PE
MB
LAWS & ANNOUNCEMENTS
CASES
Pattern of Harassment & Bullying Justified Worker’s Firing
After a city investigated a complaint that a worker had harassed and bullied a co-worker and others in the
workplace, it fired him. The union argued that although the worker’s conduct was inappropriate, it didn’t warrant
termination. The arbitrator noted that the city had properly and thoroughly investigated the complaints. The
evidence showed that the worker engaged in a pattern of disrespectful behaviour toward his co-workers and
manager that was confrontational, humiliating, threatening and deserved discipline. Management tried to counsel
the worker to changes his ways before firing him. But he didn’t change and, in fact, didn’t accept that his conduct
was inappropriate. So the arbitrator concluded that progressive discipline wouldn’t be appropriate here and his
termination was justified [Saskatoon (City) v. Canadian Union of Public Employees, Local 47, [2012] CanLII 12086
(SK LA), March 8, 2012].
Two Companies Fined for Fall Protection Violations
During a routine inspection, inspectors saw seven workers stuccoing a house without fall protection or protective
headwear. Their employer pleaded guilty to two violations of the OHS Act and was fined $2,440. In another case,
an inspection of a commercial construction site revealed three workers on a roof without fall protection equipment.
Their employer also pleaded guilty to two OHS violations and was fined $1,960 [Artistic Masonry & Stucco Ltd. and
T.U.F.F Exteriors Ltd., Govt. News Release, Feb. 22, 2012].
March 14: Alert Released on
Furnaces & Carbon Monoxide
The Office of the Fire Marshal issued
an alert on a number of natural
gas-burning forced-air furnaces that
have the potential to release carbon
monoxide fumes into the living
environment. Carbon monoxide is a
colourless, odourless, tasteless and
toxic gas that’s a product of incomplete
combustion.
March 19: New Program to
Promote Inuit Fitness
Inuit and First Nations leaders
launched a new online fitness project
aimed at improving health and fitness
among indigenous people in Canada.
Just Move It – Canada, the first of its
kind in Canada, will highlight new and
existing programs promoting physical
activity and wellness that are driven
by aboriginal culture.
LAWS &
ANNOUNCEMENTS
YT
LAWS &
ANNOUNCEMENTS
NU
NT
LAWS &
ANNOUNCEMENTS
March 19: New Steps to Address
Hazardous Waste
The government is spending more than
$4 million to drill wells near garbage
dumps to monitor the groundwater
and install spill pallets to contain
hazardous waste, such as antifreeze,
kerosene and oil. By the end of this
year, every dump and municipal
landfill is expected to have a test well.
Samples will be taken twice a year.
May 2012 © Bongarde
14
IAQ continued FROM PAGE 1
WHAT THE LAW SAYS
The growth of more tightly sealed buildings and increased use
of energy conservation measures that recirculate building air
and reduce the amount of outside air supply have led to an
increase in IAQ complaints. The use of synthetic materials, office
equipment such as photocopiers, laser printers and computers,
cleaning products, chemicals and outdoor air pollution also
contribute to indoor air contamination.
Indoor air quality is an important workplace health issue.
According to Environment Canada, the physical symptoms
commonly attributed to IAQ problems include headache,
fatigue, shortness of breath, sinus congestion, coughing,
sneezing, skin irritation, dizziness, nausea and eye, nose,
and throat irritation. Some individuals may be particularly
susceptible to the effects of indoor air contaminants, including
people:
• With existing allergies or asthma;
• With respiratory disease;
• Whose immune systems are suppressed due to
chemotherapy, radiation therapy, disease or other
causes; and
• Who wear contact lenses.
The OHS regulations of many jurisdictions require employers
to control the general quality of the air in the workplace through
means such as proper natural or mechanical ventilation. They
also typically have specific requirements for dealing with
airborne contaminants, such as occupational exposure limits
(OELs) for certain substances and use of specialized ventilation
systems to remove contaminants from the air. And of course
the “general duty” clause that’s part of every jurisdiction’s OHS
act requires employers to take every reasonable precaution to
provide a safe and healthy workplace and protect workers from
known hazards—including indoor air pollution.
HOW TO COMPLY
Requirements for maintaining general IAQ vary by jurisdiction.
(See the chart on page 16 that spells out the general IAQ
requirements in the OHS laws of each jurisdiction.) But basically,
you should do the following:
Control Humidity & Temperature
Some IAQ problems can be prevented by maintaining the
proper humidity levels and temperature in the workplace. For
example, if the humidity level is too high and the workplace
is too warm, mould, fungi and bacteria may grow and cause
respiratory problems. And when humidity is too low, people
tend to get eye, nose or throat irritation, dry skin or chapped
lips.
WorkSafe Alberta recommends keeping humidity levels
between 30-60%, although humidity levels may need to be
lower in the winter to avoid condensation on windows. The
appropriate workplace temperature depends on the type of
work being done there as well as the weather conditions.
Insider Says: For more information on mould in the workplace,
see “Indoor Air Quality: What Does the Law Require You to Do to
Protect Workers from Mould?” Sept. 2007, p. 1.
Reduce Levels of Air Contaminants
Airborne contaminants, such as carbon dioxide, carbon
monoxide, formaldehyde and volatile organic compounds
(VOCs), impact the IAQ in a workplace when they’re present
above certain levels. As a result, every jurisdiction requires
employers to protect workers from exposure to vapours,
fumes, gases and mists that contain certain contaminants
above designated OELs.
One way to control the levels of airborne contaminants in
the workplace is by eliminating their sources. In fact, Québec’s
OHS regulations require employers, insofar as possible, to
replace hazardous substances that are sources of dusts, fumes,
mists, vapours or gases with substances that aren’t hazardous
or are the least hazardous possible. But often substitutes aren’t
available. So the most common way to control the levels of
airborne contaminants in the workplace is through specialized
ventilation systems, which we discuss below.
Ensure Proper Ventilation
To have good IAQ, you must have ventilation systems in
place that are appropriate for both the facility and the types
of operations within it. Some facilities need both a general
ventilation system for the facility as a whole and a specialized
system designed to control the concentrations of airborne
contaminants in sections of the facility. Analogy: A general
ventilation system is like your home’s HVAC system, while
a specialized system is like the hood over your stove that
removes smoke and other airborne contaminants generated
by cooking.
The ventilation
categories:
For more safety compliance advice, visit us on the web at www.OHSInsider.com
requirements
fall
into
two
general
15
Design, installation and operation. Ventilation systems
must be properly designed, installed and operated. Poorly
designed systems may not only fail to prevent IAQ problems
but also cause problems themselves. So several jurisdictions,
including Fed, BC, NB and NS, require ventilation systems
to comply with ASHRAE Standard 62-1989, Ventilation for
Acceptable Indoor Air Quality. NL says that such systems must
comply with ASHRAE and ACGIH standards, without specifying
which ones. Other jurisdictions require ventilation systems to
be designed and installed in accordance with “established
engineering principles,” the building code or local by-laws,
while others spell out these requirements in their OHS laws.
Maintenance. Once your facility has a proper ventilation
system in place, you must ensure that it’s properly maintained
to work effectively. OHS laws often contain requirements for
the cleaning, repair and general maintenance of ventilation
systems. One way to comply with these requirements is
through a preventive maintenance program that includes:
•
Regular inspections of all critical components of the
ventilation system, such as dampers, fans, belts, baffles,
ductwork, diffusers and control systems;
•
Regular inspections for conditions such as water leaks or
stagnant water pools that promote the growth of microorganisms such as mould;
•
Repair or replacement of malfunctioning and consumable
components, such as filters and belts;
•
Cleaning of air distribution systems, ducts and dampers;
•
Treatment of open water systems associated with
ventilation equipment, such as cooling towers and
humidifiers, to control biological growth; and
•
Maintenance of combustion sources, such as furnaces,
space heaters and water heaters, to ensure proper
burning and exhausting of waste gases so that they
aren’t recirculated in the workplace.
Implement Process for Investigating IAQ
Complaints
An IAQ problem may still develop in your workplace even if you
take the above actions. So you should develop and implement
a process for investigating and addressing IAQ complaints.
In fact, Fed and BC law require employers to investigate
IAQ complaints and spell out the steps such investigations
must include. (BC law also requires IAQ investigations when
occupancy in the space changes substantially or significant
changes are made to the ventilation system.)
The required investigation steps contained in Fed and BC
law are a good blueprint for IAQ investigations in general.
So consider following them even if those laws don’t apply to
your facility. Based on their combined requirements, your IAQ
investigations should include, at a minimum:
•
Review of the nature and number of health or safety
complaints related to air quality;
•
Visual inspection of the workplace;
•
Inspection of the ventilation system for cleanliness,
operation and performance, including ventilation rate;
•
Review of the maintenance schedule for the system;
•
Assessment of actual building use as compared to the
use for which it was designed;
•
Assessment of actual level of occupancy as compared to
the level for which the building was designed;
•
Determination of potential sources of contaminants;
•
Sampling for suspected airborne contaminants;
•
Determination of levels of carbon dioxide, carbon
monoxide, temperature, humidity and air motion, where
necessary;
•
Specification, where necessary, of tests to be conducted
to determine levels of formaldehyde, particulates,
airborne fungi and VOCs; and
•
Identification of the standards or guidelines to be used in
evaluating test results.
In addition, you should keep records of all IAQ complaints,
the investigation of these complaints and any actions you take
in response to them.
MODEL TOOLS:
Go to the Insider’s online partner site, www.OHSInsider.com, to
download a Model General IAQ Inspection Checklist and Model Health
Survey you can use to gather information from workers on any health
problems they’re having that may be tied to IAQ.
BOTTOM LINE
As a safety coordinator, you need to impress upon
management the importance of maintaining proper IAQ.
Taking the recommended actions to keep the air in your
workplace free of pollution and address any complaints
can protect your workers from unnecessary and avoidable
illnesses. And, if protecting workers’ health isn’t reason
enough, doing so can also protect your company from
potential liability for OHS and other violations.
May 2012 © Bongarde
16
KNOW THE LAWS OF YOUR PROVINCE
Here are the general indoor air quality requirements in the OHS law in your jurisdiction:
RELEVANT LAW
FED
AB
BC
1. HVAC systems in buildings owned by an employer or in which an
employer is the principal tenant and any HVAC systems that an
employer controls must meet the design requirements of ASHRAE
Standard 62-1989, Ventilation for Acceptable Indoor Air Quality
[Secs. 2.20-2.21].
2. Employers must appoint a qualified person to set out written
instructions for the operation, inspection, testing, cleaning and
maintenance of an HVAC system and the calibration of probes
or sensors on which the system relies, taking into account CSA
Guideline Z204-94, Guideline for Managing Air Quality in Office
Buildings [Sec. 2.24].
1. Secs. 4.71-4.78 spell out the requirements for ventilation systems,
including that such systems be designed, constructed and operated
in accordance with:
a. established engineering principles; and
b. ASHRAE Standard 62-1989, Ventilation for Acceptable Indoor Air
Quality.
a. a workplace has appropriate air quality and is adequately
ventilated; and
b. contaminants and impurities don’t accumulate in the air at a
workplace [Sec. 4.1].
1. Employers must ensure that an area where a worker works contains
at least 8.5 m3 of air space for each worker in that area, excluding
height above 3 m from the calculation [Sec. 19].
NB
2. Sec. 20 spells out the ventilation requirements, including that
employers must ensure that a place of employment is adequately
ventilated by:
1. Employers must ensure that:
NL
NT/NU
NS
4. Sec. 2.27 spells out the steps employers must take to investigate
situations in which the health or safety of a worker in the workplace
is or may be endangered by the air quality.
OHS law doesn’t contain general IAQ requirements, but does have requirements for airborne contaminants and specialized ventilation systems.
1. An employer must, as much as is reasonably practicable, ensure
that:
MB
3. Employers must post, in a place readily accessible to every worker,
the telephone number of a contact person to whom health or safety
concerns regarding the IAQ in the workplace can be directed [Sec.
2.26].
a. there’s appropriate circulation of clean and wholesome air;
b. there’s adequate ventilation; and
2. Sec. 4.79 spells out the steps employers must take to investigate the
IAQ when complaints are reported, occupancy in the space changes
substantially or renovations involving significant changes to the
ventilation system occur.
a. keep the air reasonably pure; and
b. render harmless all gases, vapours, dust or other impurities that
are likely to endanger the health or safety of any person [Sec.
15(a)].
3. Sec. 4.3 spells out the requirements for specialized ventilation
systems.
a. natural ventilation that introduces outside air provided by
openings having a combined area equal to at least 5% of the floor
area; or
b. mechanical ventilation conforming to ASHRAE Standard 62-1989,
Ventilation for Acceptable Indoor Air Quality.
c. impurities are made harmless and inoffensive in a workplace in
accordance with ASHRAE and ACGIH standards [Sec. 45(1)].
2. Resource guide to the regulations says that “fresh air” means
outdoor air that’s of similar quality to ambient air in the surrounding
area and for guidance in determining whether air is “reasonably
pure,” refer to ASHRAE Standard 62-1989, Ventilation for Acceptable
Indoor Air Quality.
2. Sec. 128 spells out ventilation requirements.
PE
1. Employers must ensure that the workplace is adequately
ventilated by either natural or mechanical means so that the
atmosphere doesn’t endanger workers’ health and safety under
normal working conditions [Sec. 11.1].
2. Secs. 11.2-11.8 spell out ventilation requirements.
QC
1. Establishments must be adequately ventilated either by natural or
mechanical means, and excessive air draughts must be avoided [Sec.
101].
2. Secs. 39-44 and 101-115 spell out requirements for airborne
contaminants and ventilation.
SK
YT
Workplace Safety
& Health Regs.
OHS Reg.
OHS Regs.
General Safety Reg.
OHS General Reg.
3. Secs. 15(b)-(c) spell out ventilation requirements.
1. Industrial establishments must be adequately ventilated by either
natural or mechanical means so that the atmosphere doesn’t
endanger workers’ health and safety [Sec. 127].
a. ensure the adequate ventilation of a place of employment; and
b. to the extent reasonably practicable, render harmless and
inoffensive, and prevent the accumulation of, any contaminants
OHS Regs.
2. Secs. 45(2)-(11) spell out ventilation requirements.
ON
1. Employers, contractors or owners must:
OHS Code 2009
2. Sec. 4.2 spells out the requirements for general ventilation systems.
OHS law doesn’t contain general IAQ requirements, but does have requirements for airborne contaminants and specialized ventilation systems.
1. Employers must provide a supply of fresh air into and the removal
of air from a workplace or part thereof that’s, so far as is reasonably
practicable, sufficient to:
Canada OHS Regs.
or impurities in the air by providing an adequate supply of clean
and wholesome air and maintaining its circulation throughout
the place of employment [Sec. 65].
2. Secs. 66-67 spell out ventilation requirements.
OHS law doesn’t contain general IAQ requirements, but does have requirements for airborne contaminants and specialized ventilation systems.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
Industrial
Establishments
Reg.
OHS Regs.
Reg. respecting
occupational health
and safety
OHS Regs.
Occupational Health
Regs.
17
4 Tips for Making Safety Training More Engaging
By Barbara Semeniuk, BSc CRSP
T
raining classes on dry subjects such as safety can result
in workers with glazed over looks who are counting the
hours until the session finishes. Why not make learning
fun and incorporate techniques that will engage workers and
help them retain what they’re taught?
Training should appeal to hearing, visual and hands-on learners
and ideally incorporate methods suited to the learning styles of
all your participants. Here are some tips I recommend.
Sub-vocalization
One engagement technique, called sub-vocalization, involves
reading aloud sections of the course you want your workers to
remember and having them repeat it back out loud, making
notes at the same time. Sub-vocalization is very effective for
auditory learners.
Mind Mapping
Another useful technique to improve workers’ note taking is
called mind mapping. Here’s how it works: workers draw a
circle in the middle of the page and write a central concept
inside of it. They then write related topics or points coming
from the circle like the spokes of a wheel. Mind mapping is a
powerful tool for making complex subjects concrete, simple
and visual. It appeals to both workers who learn by doing and
visual learners.
Streamline Safety Lessons
Simply put, in this age of television, texting, social media and
commercials, attention spans have shortened. As a result, use
the 60-20-8 rule to streamline your safety training:
• No safety training session should be longer than 60
minutes, the maximum attention span that you can
expect from most participants;
• The lessons within any session should be in 20 minute
sections; and
• Every 8 minutes, you should have workers do an exercise
or change the pace such as by showing a video to regrab the workers’ attention and cement their learning.
Encourage Worker Interaction
Socialization techniques can improve workers’ memories
and make learning fun, too. For example, when a lesson is
complete, have each worker move from his/her seat, meet with
a different person in the group and discuss three things they
learned from the lesson and how they’re going to apply the
lesson to their job. Each worker can also tell the group the most
important thing he/she learned during the training session.
This approach is a fun and engaging method of encouraging
worker interactions in a non-threatening manner.
It’s also a good idea to encourage questions and use a
mixture of group and individual exercises to keep the class
flowing. And incorporating games or props, such as squeaky
toys and dice, can also engage workers in the lesson and with
each other. For example, you can have the workers roll dice to
determine how much time they’ll get for a break.
In conclusion, using these tips will improve the odds that
workers will understand your safety lessons and retain what
you’ve taught them. And I guarantee they’ll enjoy your class
and you’ll become an “in demand” trainer!
Ms. Barbara Semeniuk BSc. CRSP is President of Purcell
Enterprises Ltd., a loss control management firm that
specializes in health and safety auditing, and is a member
of the OHS Insider Board of Advisors. If you wish to
discuss this article, call her at 780-951-0867 or email her
at [email protected].
Safety Training Resources
Want more safety training tips and resources?
Go to Safety Smart Online, which provides
safety coordinators with tools to help them
reinforce learning and manage their safety
programs, such as safety talks, quizzes, cost-ofinjury worksheets and injury tracking forms.
May 2012 © Bongarde
18
MANAGING YOUR OHS PROGRAM
Implement a Fatigue Risk Management System
I
f your workplace is filled with hazardous chemicals and
dangerous machinery, you may not even think about protecting
workers from fatigue. After all, fatigue isn’t a workplace
hazard—it’s just a fact of life that workers need to manage on
their own. This kind of thinking about worker fatigue may be
common but it’s also short-sighted. For example, fatigue can
lead to safety incidents because exhausted workers may have
slowed reaction times or exercise poor judgment. The American
College of Occupational and Environmental Medicine’s (ACOEM)
Presidential Task Force on Fatigue Risk Management recently
published a guide on fatigue risk management systems. Here’s a
look at how you can use the guide to manage worker fatigue in
your workplace.
Impacts of Worker Fatigue
Yes, everyone experiences some degree of fatigue at one point
or another. But we’re not talking about general sleepiness
here. Sleepiness is merely the general tendency to fall asleep.
On the other hand, fatigue, as the ACOEM guide explains,
is the body’s response to sleep loss or to prolonged physical
or mental exertion. (See the box on p. 19 for some of the
physical, mental and emotional signs of excessive fatigue.)
Fatigue can have a variety of causes, including shift work
such as working nights or rotating shifts. Many studies have
shown that shift work can lead to sleep issues, which in turn
can lead to injuries. For example, a study by researchers at the
University of British Columbia showed that Canadians who
work nights and rotating shifts are almost twice as likely to be
injured on the job than those working regular day shifts.
Fatigue and the decreased alertness resulting from
insufficient or poor quality sleep can have several safetyrelated consequences, including:
• Slowed reaction time;
• Reduced vigilance;
• Impaired decision-making ability;
• Poor judgment;
• Distraction during complex tasks; and
• Loss of awareness in critical situations.
Safety isn’t the only aspect of the workplace impacted by
fatigue. For example, one study estimates that companies lost
$1,967 per worker per year in lost productivity due to sleep
loss.
Fatigue Risk Management Systems
You can use a fatigue risk management system to address
worker fatigue issues in your workplace. Such systems are
similar to OHS systems and can, in fact, be incorporated into
an existing OHS system. According to the guide, the key
components of a fatigue risk management system include:
Fatigue management policy. This policy should spell out
how the company plans to address fatigue in the workplace,
including the roles and responsibilities of all stakeholders. (Go
to the Insider's online partner site, www.OHSInsider.com, to
download a Model Fatigue Management Policy.)
Fatigue risk management. To manage fatigue in your
workplace, you must collect information on fatigue as a
hazard, analyze its risks and implement controls to mitigate
those risks. The guide says there are five basic ways to avoid
safety errors caused by fatigue:
1. Balance between workload and staffing;
2. Shift scheduling;
3. Worker fatigue training and sleep disorder management;
4. Workplace environment design; and
5. Monitoring fatigue and alertness for duty.
Fatigue reporting system. The guide recommends
establishing a reporting system workers can use to report
incidents caused by fatigue or when they feel so fatigued that
they’re unfit to work safely. This system should be simple and
straightforward.
Fatigue incident investigation. When workers report
incidents in which fatigue was a factor, you must investigate
such incidents promptly and effectively. This investigation
can simply be incorporated into your standard incident
investigation. It should focus on the role fatigue played,
why the worker was fatigued and why any fatigue-control
mechanisms in place failed.
Fatigue management training and education. The
company should train management and workers on the
fatigue risk management system. The guide suggests that this
training cover:
• Hazards of working while fatigued and the benefits of
being well rested;
• Impact of chronic fatigue on personal relationships,
mental/physical well-being and general happiness;
For more safety compliance advice, visit us on the web at www.OHSInsider.com
19
• Recognizing that although fatigue can’t be eliminated, it
can be managed and minimized;
• Adequate quantity and quality of sleep is key to
managing fatigue;
• Basics of sleep physiology, circadian rhythms and what’s
considered adequate sleep;
Signs of Excessive Fatigue
Physical signs:
• Sleep hygiene—that is, how to obtain adequate quality
and quantity of sleep;
• Yawning
• Sleep disorders—why they matter, how to tell if you may
have one and what to do about it;
• Drooping eyelids
• Importance of diet, exercise, stress management and
management of other health conditions that affect
fatigue;
• How to recognize fatigue in yourself or your co-workers;
and
• Alertness strategies to be used while at work, such as
appropriate use of caffeine, rest or exercise breaks and
social interactions.
Sleep disorder management. One of the most common
causes of fatigue is an underlying sleep disorder. So it’s
beneficial for companies to set up sleep disorder management
programs that screen workers for sleep disorders and help
them get appropriate treatment.
Process for internal and external auditing of the
system. As with any safety management system, your
fatigue risk management system should be regularly audited
to ensure that it’s effective and up-to-date and to implement
any corrections or improvements.
BOTTOM LINE
For a fatigue risk management system to be effective all
stakeholders must be actively engaged in it. But the guide
stresses that its success depends on the commitment of a
senior manager who’s ultimately accountable for managing
fatigue risk. In addition, a positive safety culture in which
workers and management trust one another and information
about fatigue is openly reported is important to the successful
implementation of such a system. Safety coordinators can use
the ACOEM guide to get buy-in from both management and
workers on the need for a fatigue risk management system
and to set up such a system once approved.
INSIDER SOURCE
• Rubbing of eyes
• Head dropping
• Microsleeps
• Digestive problems
Mental signs:
• Difficulty concentrating on tasks
• Lapses in attention
• Difficulty remembering tasks being
performed
• Failing to communicate important
information
• Failing to anticipate events or
actions
• Accidentally doing the wrong thing
• Accidentally not doing the right
thing
Emotional signs:
• More quiet or withdrawn than usual
• Low energy
• Lacking the motivation to perform a
task well
“Fatigue Risk Management in the Workplace,” ACOEM
Presidential Task Force on Fatigue Risk Management, JOEM,
Vol. 54, No. 2, Feb. 2012.
May 2012 © Bongarde
20
WINNERS & LOSERS
Can You Fire a Worker for Swearing on the Job?
Various kinds of inappropriate conduct by workers can establish “just cause” for their termination, such as poor job performance, harassment, violence,
theft of company property, etc. But can an employer fire a worker for swearing on the job? Here are two cases in which arbitrators had to decide if
termination was appropriate for a worker who cursed at work.
TERMINATION WAS APPROPRIATE
TERMINATION WASN’T APPROPRIATE
FACTS
FACTS
A lead hand for a road maintenance contractor was conducting rolling road closures of a highway
that had debris strewn on it. As he parked at the bottom of an onramp, a couple backed their
van down the ramp and into his vicinity. He approached the open passenger window, struck
the side of the van several times and started yelling and swearing at the couple, telling them to
get back on the “f**king highway.” In fact, he used the word “f**k” or “f**king” several times.
The contractor fired him for unprofessional behaviour toward members of the general public.
The union argued that termination was excessive, although both the union and the lead hand
acknowledged that calling a member of the public a “f**ing a**hole” was inappropriate.
A worker for an auto parts company brought a starter into the
office. The owner’s son yelled at him, claiming he’d asked for an
alternator, not a starter. They got into an argument, during which
the worker said, “I don’t need this f**king sh*t!” Both a customer
and a female worker were present. Two days later, the worker was
fired for swearing in front of a customer and a “lady” in the office.
DECISION
An Ontario arbitrator ruled that the contractor was justified in firing the lead hand.
DECISION
The Ontario Labour Relations Board ruled that termination was
excessive.
EXPLANATION
EXPLANATION
The arbitrator, noting that the lead hand’s contract required him to act professionally and
courteously toward the general public, found that his language and conduct were unprovoked.
He never apologized or showed remorse. In fact, when he was told at the termination meeting
that he was being fired for using “abusive language,” he replied, “They f**king well deserved
it.” He argued that swearing and profane language were common in the workplace. But the
arbitrator said that even if that was true, it doesn’t take a lot of common sense to know that
you should avoid swearing at a stranger, especially when your conduct reflects upon your
employer. Plus, the lead hand had been disciplined for abusing a member of the public seven
months before this incident.
The company claimed that it was justified in firing the worker given
his use of profanity and disciplinary record. But the Board noted
that the prior discipline had been imposed on the worker for his job
performance, not his use of profanity. There was no evidence as to
whether profanity was common in the workplace or whether the
company had a policy barring the use of profanity. And it appears
that this incident was an isolated one. So the Board concluded that
although the worker’s swearing in front of a customer warranted
discipline, it didn’t justify termination.
TWD Roads Management Inc. v. International Union of Operating Engineers, Local 793, [2011]
CanLII 80857 (ON LA), Dec. 14, 2011
Queensway Auto Parts (403491 Ontario Inc.) v. Copeland, [2009]
CanLII 3350 (ON LRB), Jan. 22, 2009
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