The HR Space is edited by Lyne Duhaime, Karen M. Sargeant and Brian P. Smeenk.
It is commonplace for companies and supervisors across Canada to be charged and convicted with respect to health and safety offences. But the same doesn't necessarily hold true for health and safety managers. In R. v. Della Valle, the Provincial Court of Nova Scotia recently convicted and fined a health and safety manager. This individual is now the second health and safety manager to be convicted of an occupational health and safety offence.
Mr. Della Valle was the occupational health and safety coordinator of the Cape Breton Island Housing Authority, which owns and maintains several housing units. After concerns were raised by an employee, testing was done on vermiculite insulation found in the attics of some of the housing units.
Mr. Della Valle came into possession of a written report which confirmed the presence of asbestos in the insulation material, and which outlined measures to protect maintenance workers and occupants within the housing units. Mr. Della Valle gave a copy of the report to and discussed it with two maintenance supervisors, and then assumed the matter would be addressed. Six months later, the matter again came to the attention of Mr. Della Valle, when he learned that no steps had been taken to address the concerns outlined in the report.
Mr. Della Valle was charged under the Occupational Health and Safety Act of Nova Scotia for failing to take every precaution in the circumstances to protect the health and safety of employees and other persons at or near the workplace. He was found guilty after trial.
Reasoning of the Court
The Court said that its task was to consider what responsibility existed for Mr. Della Valle and then determine whether the responsibility was exercised in the manner required by law. The Court concluded that Mr. Della Valle had general responsibility for health and safety matters within the organization. While he was not engaged in hands-on repairs and maintenance, this did not diminish his responsibility for health and safety matters in the broader sense.
The Court determined that although Mr. Della Valle reported the matter to two of the maintenance supervisors, he should have reported the findings from the report to his supervisor, the Director of the Cape Breton Island Housing Authority. He also did not advise any other management personnel, the employees, contract employees or the joint health and safety committee. Finally, he did not follow-up to determine if the measures that had been recommended in the report were actually being implemented.
While Mr. Della Valle was not paid at the level of top managers, the organizational chart put him at the top level reporting to the Director. As such, he occupied a unique position within the organization and his role, as set out in his job description and considered in the context of the legislation, was to promote a safe and healthy workplace.
What the Supervisor Should Have Done
Mr. Della Valle, the Court said, should have:
- immediately notified his supervisor (the Director) of the contents of the report. In this regard, the Court expressed surprise that the Director was not informed of the situation for more than six months;
- followed-up with the supervisors to determine whether and to what extent they had acted on the recommendations. Theirs and others' response should have involved notification to tenants, physical modification of the premises, use of specialized equipment, advice to employees and contractors and attendant budgetary measures;
- attended and reported at one of the monthly joint occupational health and safety committee meetings about the presence of asbestos in the units; and
- instigated a form of hazard assessment for any worker activity which might involve an employee of the Housing Authority entering the attic or disturbing the insulation from below.
The lack of any of these actions resulted in the Court concluding that Mr. Della Valle had failed to establish due diligence. Mr. Della Valle was fined $1,000 for failing to protect workers and members of the public. This was in addition to the $10,000 that the Department of Community Services had been fined after it pled guilty in 2009 to failing to protect workers and members of the public.
Given the similarity of occupational health and safety legislation across the country, it will not be surprising to see other provinces' courts adopt similar standards. Employers should ensure that their health and safety managers understand their personal responsibilities in this regard.