Friday, June 10, 2011

Reporting Every Incident: ‘Person’ vs. ‘Worker’ in the OHSA - Person vs. Worker

Ontario’s Occupational Health and Safety Act (OHSA) is set up to outline the rights and duties of all parties in Ontario workplaces. Typically when one thinks of “workplace parties” the employer, managers/supervisors, and employees come to mind. As such, most employers consider the OHSA to protect only workers of the workplace, but based on some of the specific wording in the act this may not be the case. Under subsection 51 (1) of the OHSA, the Ministry of Labour (MOL) must be notified immediately after the occurrence of a death or injury at the workplace. The belief has been that this only relates to deaths or injuries of a person employed by the workplace, but a recent OLRB case involving Blue Mountain resort reveals that in fact is not the case.

In December of 2007, an unsupervised guest at the Blue Mountain resort drowned in the indoor swimming pool. When the incident occurred, no workers were present in the pool area. Blue Mountain decided not to report the fatality to the Ministry of Labour since the incident did not involve a worker. Four months later a Ministry of Labour inspector visited the resort to conduct workplace compliance audit, and soon found out about the drowning. As a result Blue Mountain was issued an order under subsection 51 (1) of the OHSA which states that:

Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means...

Based on the literal wording of the act, Blue Mountain was given an order since they failed to notify an inspector of the death of a person. Blue Mountain appealed the order to the Ontario Labour Relations Board (OLRB) and further sought judicial review, but both the board and the Court upheld the order.

Subsection 51 (1) is not the only instance of the use of the word “person” in the OHSA. While the term person is not defined in the act, “worker” is defined as “a person who performs work or supplies services for monetary compensation...” therefore the OLRB held that the term “person” was more expansive than “worker” and that the OHSA wouldn’t have used the word “person” if they only meant “worker.” The main reason for why the MOL requires non-worker fatalities and injuries to be reported is that the workplace hazards that injure non-workers may also endanger workers.

The other aspect of the order that Blue Mountain took issue with was the fact that they believed the incident did not take place at the workplace since no workers were present. Both the OLRB and the Court agreed as well that despite the absence of a Blue Mountain worker at the time of the incident, the swimming pool area was in fact a “workplace.”

What does this mean for Employers?

While the responsibility under the OHSA to report deaths or injuries hasn’t changed or been revised, the outcome of the Blue Mountain case has broadened the understanding of OHSA’s definitions. This new understanding runs the risk of turning almost any place into a workplace, and any injury or fatality as an incident to report. What is and isn’t a reportable injury to the MOL under the OHSA? Currently the answer really can only be left to, “it depends on the circumstances.”

What employers need to do is take every precaution when dealing with any type of workplace accident. This should include when a non-worker accident occurs or when an accident occurs “off-site” of the workplace. Proper accident and incident reporting procedures should be developed and in place complete with employer, employee, manager/supervisor, and Health and Safety representative responsibilities in order to ensure OHSA and MOL compliance. Proper reporting procedures should instruct Human Resources or the Manager/Supervisor to immediately contact a MOL inspector to inquire as to whether or not the MOL requires any notice. Generally by phoning the MOL toll free number (1-877-202-0008), representatives will be able to quickly inform employers of their obligations for specific incident circumstances. It’s always better to be safe than sorry, especially when dealing with legislation.

Proper accident and incident procedures should also outline appropriate written reporting procedures and reporting forms. For any incident that occurs, a report needs to be completed stating the circumstances of the incident with a copy to be given to the MOL.

When dealing with any type of incident there are some basic steps to follow to help ensure that every organization has complied with their responsibility:

1. Provide medical assistance to the injured person.

2. Preserve the scene of the accident.

3. Notify the MOL for any critical or fatal injuries.

4. Determine whether reporting is required (can double check with MOL by calling).

5. Complete reporting requirements, if applicable.

6. Co-operate with the MOL during any investigations.

7. Complete an internal investigation of the incident.

8. Obtain independent expert advice if necessary.

9. Take necessary steps to prevent similar incidents from reoccurring.

Tanya Walesch, H.B.A.

Human Resources and Safety Consultant

Beyond Rewards Inc.

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