THE EMPLOYERS' EDGE
Hefty OHSA Fine for an Employer after Agency Worker Dies on the Job
A recent guilty plea by an employer after an agency supplied temporary worker died on the job is a sobering reminder of just how broad the definition of “employer” is under the Occupational Health and Safety Act (“OHSA”).
The employer, Marmora Freezing Corporation, was fined $150,000 after pleading guilty to the charge of “failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker” pursuant to section 25(2)(h) of the OHSA. In effect, Marmora agreed that it failed to take the reasonable precaution of ensuring that no pedestrians were present in an area where illumination was limited and where vehicles had sight-line difficulties.
In addition to the fine, the court imposed a 25-per-cent victim fine surcharge as required by the Provincial Offences Act, bringing the total paid by Marmora to $187,500.
The Facts:
The security guards for the Marmora facility were provided by a temporary placement agency. On December 13, 2011 one such guard reported to the facility for his shift, which was to begin at midnight. At the outset of the shift the worker left the building to smoke. The area designated for employees to smoke was in the travel way outside of the building. The worker entered the smoking area and began walking along the travel way.
At the same time, a car being operated by another worker drove along the travel way and struck the guard from behind, knocking him to the ground. After pausing briefly, the vehicle left the scene. The driver is reportedly facing trial on a number of criminal charges including dangerous operation of a motor vehicle causing death, failure to stop and criminal negligence.
Immediately after the car left the scene, a tractor/trailer unit began to reverse down the travel way. The fallen worker was caught by the trailer’s mud flap and was pushed nearly 100 metres along the travel way to his death.
The worker was dressed entirely in dark clothing, with no light or reflective components. There was no protective barrier or other safeguard to protect pedestrians in the travel way from vehicular traffic.
A Ministry of Labour ergonomist tested the visibility of surroundings and determined that a driver would have had sight-line difficulties for an area behind the trailer. It was also determined that illumination in the travel way was inadequate to ensure the visibility of pedestrians.
Lessons for Employers:
Companies that engage the services of agency supplied temporary workers are likely the “employer” of those workers for the purposes of the OHSA. As such, the safety of those workers and all precautions required by the OHSA are the responsibility of those companies.
As well, there is a trend towards more cases involving workers who are struck by reversing vehicles in parking areas, travel ways or loading bays. Employers should ensure that these areas are well lit, that they have good sight lines and that protective barriers and/or other safeguards are implemented wherever necessary.
Moreover, employers should require employees who work outdoors or those that have access to the outdoors at night to carry a light and/or to wear reflective clothing.
Finally, if at all possible, employers should avoid having designated smoking areas in spaces with vehicular traffic.
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