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You Be the Judge: Can An Employer Piggyback on Worker’s Safety Training from Previous Employer?

Dec
9

You Be the Judge: Can An Employer Piggyback on Worker’s Safety Training from Previous Employer?
- adapted from the November 2019 issue of OHS Insider

Situation
A company hires a trained brickworker and puts him right to work. One of his job duties is to inspect bricks as they advance on the conveyor, hand-pick the bad bricks from the line and rake the good bricks so that a large dehacker machine can carry them away. Six months after starting the job, the brickworker wanders into an unguarded area in the path of the dehacker machine and gets crushed suffering injuries that would prevent him from ever working again. Since he had 30 years’ experience, the company gave him only a one-day crash training course on its safety procedures that didn’t cover the dangers of the dehacker machine, although it did warn him that the area was unguarded and that he needed to keep clear of it.

You Make the Call
True or False? The company was found liable for not properly training the brickworker, even though he was a skilled worker with 30 years of experience.

Answer
True

Explanation
This hypothetical is loosely based on the facts of an old but still important case called R. v. Canada Brick, [2005] O.J. No. 2978, June 30, 2005] that happened in Ontario but is cited in all parts of the country, including Saskatchewan.

The key question
Did the company exercise due diligence, i.e., take all reasonable steps to comply with the OHS laws and protect the brickworker from foreseeable risks? The court said no and held the company liable for, among other things, failing to properly train the brickworker how to do his job safely.

Two Lessons Illustrated

1. You Can’t Always Rely on Training from Previous Employers
The company admitted that it didn’t fully train the brickworker in the dangers of doing his job. But it said it didn’t have to. After all, the guy had more than 30 years’ experience at the other plant. So, it figured that it would be enough to acquaint him with the company’s safety procedures and let him do the job he had been trained to do. But the court saw it differently. A company can’t rely on the training provided by a previous employer, it said. Safety training from one company doesn’t necessarily translate to another company, particularly when the machines and processes involved are different. The company should have specifically trained all of its new workers, even the veterans, on the dangers of the dehacker machine.

2. Warnings Are Not a Substitute for Engineering Safety Measures
The other reason that the company couldn’t prove due diligence is that it didn’t have machine guards in place to block access to the dehacker machine. The supervisor was competent and conscientious. He would walk around the plant keeping an eye on workers, especially new ones, and caution them to be careful when working with the machines. Not only were these warnings not enough but, according to the court, they were evidence showing that the company recognized the risk of injury and didn’t do enough to prevent it.

To read the full article, click here.

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