by Peter Shea

    Diligence is Due – Ensuring a Safe Work Environment

    Safety of the workplace is by necessity front of mind in the oil and gas industry. With a challenging production environment, accidents can have catastrophic consequences. For years, more and more employers have been developing robust safety programs, with safety culture leading the way as the first organizational priority.

    Even when the utmost care is taken, accidents do happen. Should an incident occur that results in charges under occupational health and safety legislation, the safety culture and training programs of an employer will come under close scrutiny.

    Occupational Health and Safety Offences:

    Despite the current focus on safety culture, the number of occupational health and safety prosecutions continues to rise across all industries. Legislation continues to prescribe, and courts continue to assign, higher and higher penalties for such offences. Charges under occupational health and safety legislation are classified as strict liability offences. In order to establish the elements of such an offence, the prosecution need only prove that the act complained of happened, regardless of intent. Should the elementsof the offence be proven, the primary defence available to an employer is that of due diligence.

    The Due Diligence Defence:

    As its name connotes, a due diligence defence requires an employer to establish that it did everything reasonable to prevent the incident from happening, including sufficient employee orientation and training to establish worker competency, as well as proper work planning and communication. It involves an analysis of whether what occurred was reasonably foreseeable, and the employer’s safety procedures and training in relation to the incident.

    Most employers have well-established risk management processes for assessing hazards, and communication protocols on issues related to health and safety. Increasingly, however, the question arises of what processes are in place to ensure employee competency in this area.

    Due Diligence – Building for Success:

    A good starting point – and one that is often overlooked in safety training – is to have a protocol in place to ensure employees are knowledgeable and competent with respect to applicable occupational health and safety legislation. Knowing what is required by regulators with respect to the work environment is necessary in order to construct a compliant system. This protocol should apply from top to bottom, throughout all levels of an organization.

    It is critically important to ensure that employees who oversee operational activities are provided with the necessary training to allow for a functional understanding of the regulatory system. This will assist with setting the groundwork for and establishing a due diligence defence should the need arise. Demonstrating due diligence is facilitated when employees are competent with respect to the regulatory framework in which they operate.

    The primary training provided to this group of employees may often only be focused on specific work activities, such as how to use or maintain equipment, or very defined aspects of legislation, such as WHMIS or first aid. Such training may also be “one and done” as opposed to ongoing. A systematic and comprehensive process of ongoing training is key in ensuring a safe work environment, and in establishing that all reasonable care is being taken.

    Technology today readily allows for such systems, which can be cost-effective for both small and large organizations, regardless of where they may be operating in the world. Traditionally, it may have been the view that these courses were only for people interested in being health and safety specialists. The more progressive view, however, is that all employees in a front-line leadership as well as operational roles need to develop these competencies.

    On its own, a competency development and assessment process is likely not sufficient. To constitute due diligence, such a process would be a required component of an integrated occupational health and safety management system, complementing the other management system processes, allowing an employer to demonstrate that it holds its duty of care for employees in the highest regard. The implementation and management of such systems encourage a safe working environment, and facilitate an employer’s ability to establish that it is taking all reasonable care.

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