April 14, 2011

The HR Space is edited by Dominique Launay, Karen M. Sargeant and Brian P. Smeenk.

Do you have employees working alone?  If so, you may be required to assess your workplace and take measures to reduce risks of possible harm to workers.  Indeed, many provinces require such action.  A recent Alberta case demonstrates the tragic outcome that can befall a worker if you fail to conduct a hazard assessment, as well as the significant monetary and criminal penalties your company may face as a result.

The Facts

On February 22, 2011 Garda Canada Security Corp. ("Garda"), a national security company, pleaded guilty under the Alberta Occupational Health and Safety Act for failing to protect the safety of one of its female security guards.  The female security guard was raped while on patrol in the early hours of a morning in November 2006.  The construction site where the guard was working was unsecured with no way to prevent unauthorized entry.  While Garda had designated the area surrounding the construction site as low risk, the site itself had not been evaluated by the company prior to work commencing. 

The security guard was working alone.  When she heard noises at the work site, she called Garda's dispatch coordinator, who transferred the call to 9-1-1.  But not soon enough.  After significantly harming the security guard, the perpetrator was arrested on scene and sentenced to seven years for assault and another year for unlawful confinement.  Garda was charged under the Alberta Occupational Health and Safety Act and Criminal Code of Canada (the "Criminal Code").

"Working Alone" Regulations

As is the case in British Columbia, Saskatchewan, Manitoba and New Brunswick, Alberta has "working alone" regulations that direct employers to conduct a hazard assessment where workers will be working alone. A hazard assessment must be in writing, and must be communicated to any worker who may be affected by the assessment.  In addition, employees that work alone must have an effective means of communication between themselves and a person capable of responding to a threat.  Alternatively, they must be visited by the employer or required to contact the employer periodically.

Under the Alberta Occupational Health and Safety Act, penalties for first time offenders include a fine of not more than $500,000 or, in the case of an individual, imprisonment for a term not exceeding 6 months.  As a result of its failure to comply with the Alberta working alone regulation, Garda pleaded guilty to the charge under occupational health and safety legislation and faces more than $90,000 in fines and penalties.  Sentencing in the matter will be heard in July 2011. 

Bill C-45 - Criminal Liability for Employers

And that's not all.  In addition to the requirements under occupational health and safety legislation, employers can also face charges under the Criminal Code. 

In 2004, the Criminal Code was amended to make explicit the legal duty of employers to take reasonable steps to protect the health and safety of their workers in Bill C-45. Bill C-45 also imposed criminal liability on corporations for negligence and other offences.  As of September 2010, the Canadian Centre of Occupational Health and Safety reported four cases where organizations or key employees in those organizations faced charges under these sections of the Criminal Code. Each involved workplace accidents causing injury or death.

• In 2004 an employee in Ontario was killed while digging a ditch at a residential construction site. The construction site supervisor was charged with criminal negligence causing death. The charges were eventually dropped when the supervisor pled guilty to three of eight charges under the Ontario Occupational Health and Safety Act.
• In 2007 a service manager of a Quebec auto dealership was charged with criminal negligence after one of his employees caught on fire while using a broken makeshift fuel pump. The employee survived but received third degree burns to 35% of his body.
• In 2008 a paving company was charged and convicted of criminal negligence and fined the maximum fine of $100,000, after its employee died.
• In 2010 police in Ontario charged the owner of a crane rental company and the crane operator with criminal negligence causing death after a municipal worker was killed while working in an excavation hole.  The crane toppled and fell into the hole, killing the worker.

Take-Away for Employers

The Garda case sends a message to employers that charges may be laid against organizations under both the Criminal Code as well as provincial occupational and safety legislation where an employee is injured in a violent assault while working alone - particularly if the employer failed to take reasonable steps to assess the risk of such an assault.  Employers can limit their exposure to liability by assessing the risk to employees of such incidents, communicating those risks to their workforce and taking reasonable measures to minimize or eradicate such risks.

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