Health and Safety Due Diligence
The concept of Due Diligence in health and workplace safety legislation is well established. All employers in Canada should have a very good understanding of Due Diligence as it relates to health and safety law. It is essential understand that you have a safety management system that will prove Due Diligence under Canadian Law.
In order to understand the concept of Due Diligence, one must first be aware that most provincial health and occupational health safety offences, under which one would be charged or prosecuted would be called “Strict Liability Offences”. A strict liability offence is where the prosecution only needs to prove beyond a reasonable doubt that the defendant committed a prohibited act. The prosecution will submit for discovery that the safety management systems in place failed.
A Sound Safety Management System is the best proof you can have for proving due diligence
This then allows the accused to avoid liability by proving that he/she took all reasonable care (exercised due diligence). This involves consideration of what a reasonable person would have done in circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or he/she took all reasonable steps to avoid the particular event or comply with the legal requirement.
Do you have a Reliable Documented Safety Management System that ensures workplace safety & due diligence?
Establishing the defence of due diligence requires positive evidence by the accused. Employers should have a well established Health and Workplace Safety Management System that is based on continual improvement. The Health and Safety Management System must provide evidence assist an accused employer in meeting its due diligence requirements and should include, but not be limited to demonstrating:
- That wokplace safety management is a priority at the workplace.
- That all work place parties (employers, employees, managers, supervisors, directors, officers, etc.) understand their duties under the law and comply with them
- That a workplace risk assessment has identified risks that are foreseeable in the workplace and that those risks are addressed through a properly functioning and documented health and safety management system
- That written occupational health safety policies, of practices, procedures are established, implemented and enforced (establishing a health and safety manual)
- That proper health and safety training courses and instruction on the existence of, and the requirements of, the policies, work practices and procedures is provided.
- That routine observation and monitoring through workplace safety inspections are carried out to ensure that the policies, work practices, and procedures are being complied with.
- That there existed a proper and functioning safety committee.
- There are regular occupational health safety meetings.
- The degree to which health and workplace safety rules are communicated to employees and enforced.
- Whether any other employee had engaged in similar conduct previously
- That workplace accidents and incidents are investigated through a proper accident investigation program and corrective actions are take to prevent reoccurrence of injury.
- The company reviews its workplace safety procedures regularly.
- That proper record keeping and documentation is maintained.
The proper exercise of managerial and supervisory rights and responsibilities is not harassment.