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. 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. 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. 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.
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