All security employers have the primary legal duty to protect the health and safety of their workers. However, it is a legal burden that is shared. Unfortunately, too many employers address this legal, ethical and moral responsibility only after an incident has occurred that caused harm or injury to a worker or the employer has been cited by WorkSafe BC for noncompliance with OHS Law. It’s called “duty of care” and it must be documented in order to use “due diligence” as a legal defense.
Duty of Care
Legally, employers must abide by relevant health & safety law, employment law, as well as the duty of care common law. They also have a moral and ethical duty not to cause, or fail to prevent, physical or psychological injury, and must fulfil their responsibilities with regard to personal injury and negligence claims.
An employer can be deemed to have breached their duty of care by failing to do everything that was reasonable in the circumstances to keep the employee safe from harm. Employees also have responsibilities for their health and wellbeing at work – for example, they are entitled by law to refuse to undertake work that isn’t safe without fear of disciplinary action.
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Due diligence is the level of judgement, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances.
Applied to occupational health and safety, due diligence means that employers shall take all reasonable precautions, under the particular circumstances, to prevent injuries or accidents in the workplace. This duty also applies to situations that are not addressed elsewhere in the occupational health and safety legislation. Reasonable precautions are also referred to as reasonable care. It refers to the care, caution, or action a reasonable person is expected to take under similar circumstances.
Another term used is employers must do what is “reasonably practicable”. Reasonably practicable has been described by the Labour Program (Canada) as taking precautions that are not only possible, but that are also suitable or rational, given the particular situation. Determining what should be done is evaluated on a case by case basis.
To exercise due diligence, an employer must implement a plan to identify possible workplace hazards and carry out the appropriate corrective action to prevent accidents or injuries arising from these hazards. OSH answers fact sheets (2016) Available at: http://www.ccohs.ca/oshanswers/legisl/diligence.html
So, who are the ”Protectors?”
Supported by BC’s Workers Compensation Act, Part 3 Division 3, Sections 115-118 – General Duties of Employers, Workers and others; This article argues that the Protectors are:
Employers – Section 115 An employer must:
- Establish and maintain a health and safety committee, or cause workers to select at least one health and safety representative.
- Take every reasonable precaution to ensure the workplace is safe.
- Train employees about any potential hazards and in how to safely use, handle, store and dispose of hazardous substances and how to handle emergencies.
- Supply personal protective equipment and ensure workers know how to use and handle the equipment safely and properly.
- Immediately report all critical injuries to the government department responsible for OH&S.
- Appoint a competent supervisor who sets the standards for performance, and who ensures safe working conditions are always observed.
Supervisors – Section 116 The manager or supervisor must:
- Make sure workers work in compliance with OH&S acts and regulations.
- Make sure that workers use prescribed protective equipment devices.
- Advise workers of potential and actual hazards.
- Provide workers with written instructions as to the measures and procedures to be taken for protection of the worker.
- Take every reasonable precaution in the circumstances for the protection of workers.
Managers and supervisors act on behalf of the employer, and hence have the responsibility to meet the duties of the employer as specified in the Act for the work they (the managers and supervisors) direct.
Employees – Section 117 Employees responsibilities include the following:
- Work in compliance with Occupational Health and Safety (OH&S Acts and Regulations.
- Use personal protective equipment and clothing as directed by the employer.
- Report workplace hazards and dangers to the supervisor or employer.
- Work in a safe manner as required by the employer and use the prescribed safety equipment.
- Tell the supervisor or employer about any missing or defective equipment or protective device that may be dangerous.
Employees have the following three basic rights:
- Right to refuse unsafe work.
- Right to participate in the workplace health and safety activities through the Health and Safety Committee (HSC) or as a worker health and safety representative.
- Right to know, or the right to be informed about, actual and potential dangers in the workplace.
Prime Contractor (Client) – Section 118
In a workplace where there are two or more employers working at the same time, a written agreement should identify a prime contractor. If there is no written agreement, the owner is considered to be the prime contractor.
While prime contractors have overall responsibility for health and safety on a worksite, employers still retain responsibility for the health and safety of their own workers.
- Coordinate the occupational health and safety activities of all employers, workers, and anyone else at the workplace.
- Establish and maintain procedures to ensure occupational health and safety requirements at the workplace are followed by all parties.
Each have a collective and individual responsibilities for the health and safety of security workers.
Here is a very simplified perspective on legal, ethical and moral law:
In part 2 we’ll look at the how security employers heighten the hazard and vulnerability of security workers working alone.
About the author:
Jim Foston is the CEO and Founder of The Foston Group – Safety & Protection Solutions. His focus is on the development and delivery of security patrol sector health and safety training. His clients include security companies, government clients and educational institutions. He has sat on training review committees with the Canadian General Standards Board (National review committee for Security Professional training standards), Justice Institute of BC (review BC Security Officer training curriculum), and BC Human Rights Coalition for Security Officer Training. Jim is also a Member of The Institute for Performance and Learning. http://performanceandlearning.ca/about-us/
Jim resides in Nanaimo, BC Canada. www.thefostongroup.com