With increased supervisory prosecutions and penalties, OHS due diligence is becoming extremely crucial for organizations. The introduction of amendments to the Criminal Code under Bill C-45 in 2004 became a landmark move made by the authorities to enhance workplace health and safety. It brought a potential criminal liability angle to OHS offences. Currently, anyone who fails to meet their duty and shows “wanton or reckless disregard” for the lives or safety of others can be charged with criminal negligence.
Due diligence means that employers shall take all reasonable precautions, under the circumstances, to prevent injuries or accidents in the workplace. This duty also applies to situations not addressed elsewhere in the Occupational Health and Safety legislation. Due diligence is important as a legal defense for a person charged under the Occupational Health and Safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.
To prove your OHS due diligence, you should be able to demonstrate the following with evidence:
• Identification of risks and hazards your employees are exposed to through a comprehensive job safety analysis (JSA) / job hazard analysis (JHA).
• Development of company specific policies and procedures based on your JSAs / JHAs.
• Your organization’s policies, procedures, and safe/standard operating procedures (SOPs) need to meet or exceed the minimum standards.
• Training has been provided to all your employees on company specific policies, procedures, and applicable standards.
• Organization conducts ongoing hazard identification, regular inspections, and correction of hazards.
• Review of the health and safety program and performing safety compliance audits.
• Communication of the risks and steps to prevent hazards to all its employees.
• Having ongoing reminders and enforcement through disciplinary actions.
• Documenting the procedures adopted for investigating accidents and/or incidents.
• Workplace Violence and Sexual Harassment prevention policy.
• Proper posting of company safety rules and procedures and updated H&S manual, making it easily accessible to all workers.
• Providing appropriate orientation and training to existing and new employees.
Supervisors of an organization must ensure that policies and procedures are understood, implemented, and followed. They must advise employees of any hazards and potential exposures. One of the best approaches supervisors can take is direct monitoring of employees’ performance of activities. In fact, supervisors are advised to have increased monitoring for a high-risk task. It is the duty of the supervisors to enforce disciplinary actions for non-conformance. Moreover, proof of enforcement such as documentation that could include checklists, warning emails, and memos, is very crucial to prove due diligence. OHS due diligence is an ongoing process. Therefore, get a safety compliance review/audit done either on yearly basis or every 18-24 months. This helps you to stay on top of workplace safety. Getting experts to review and make recommendations of your safety program is another useful step you can explore. Experts will provide you with an unbiased third-party view of your program. Moreover, they will make recommendations to fill the gaps in your program by providing you with a clear roadmap. It is crucial to maintain your program by reviewing, providing refresher training, and documenting all activities including inspections, investigations, and disciplinary actions. The authorities have set minimum compliance requirements but strive to achieve much more.
