Workplace safety is a big topic in the employment world. Employers have a common law and statutory duty to keep employees safe at the workplace. In Ontario, we have the Occupational Health and Safety Act (OHSA), and other employment and safety legislation, which set out the obligations and steps employers must take to make their workplace safe. Workplace safety has been become important in a new context over the last year due to the current pandemic and the safety challenges presented by COVID-19. However, employers must always be aware of their strict duty to keep employees safe from physical dangers, as well as other issues including harassment and violence.

Further, employers need to ensure that all staff, including middle management, people managers, and supervisors are properly trained on their responsibilities to maintain a safe workspace. Failing to do so, could see employers pay large damage awards, as in the following case.

A Workplace Challenge Turned Into Serious Injuries

In the case at hand, an employee was challenged by his colleague to climb a 14-foot-high chain hoist. As he climbed down, the crotch of his pants caught on a hook near the bottom of the chain and another chain pierced his scrotum.

The employee claimed that he asked for an ambulance. A supervisor came into the shop and laughed. The employee testified that the supervisor refused to call an ambulance for him. The supervisor allegedly drove the employee to the second shop location to talk with the service manager, who was the employee’s direct supervisor. The employee claimed that both the service manager and the supervisor instructed him to say that the injury had occurred while the employee was at home. That evening, the employee had surgery. The Workplace Safety and Insurance Board (WSIB) decided that the employee was not entitled to benefits after deciding the accident did not take place in the course of his employment, despite it happening in the workplace. The employee had admitted that the accident occurred while he had been engaged in “horseplay”.

The employee made a number of allegations, including:

• There was a lack of safety training at the workplace in general.
• He drove a forklift without proper certification.
• His employer failed to properly train him on how to safely carry out dangerous tasks.
• No supervisor had been on the floor on the day of the accident.
• There was no training, for the employee, on how to operate the chain hoist which caused the injury. Therefore, he did not know that climbing it was dangerous.

The employer disputed the employee’s evidence.

Employee Awarded Punitive Damages for Lack of Training

The trial was a trial by judge and jury. The jury assessed the employee’s general damages in the amount of $75,000 and damages for lost wages at $9,000. However, these awards were reduced by 75 per cent due to the employee’s contributory negligence.

The second set of damages assessed were punitive damages. Here, the jury found that the employer was liable for punitive damages in the amount of $150,000. The jury provided a brief explanation of the employer’s role in causing or contributing to the respondent’s injuries. The jury stated that “The [appellant] demonstrated a serious lack of proper safety training, documentation, as well as creating a culture within the company whereby employees failed to place adequate importance on best safety practices.”

Supervisor Conduct Was in Course of Employment

The Court of Appeal of Ontario upheld the jury’s punitive damages award. In doing so, the Court reached several conclusions:

• The trial judge properly left the issue of punitive damages with the jury.
• A properly instructed jury could award punitive damages.
• An award of punitive damages was warranted when the supervisor instructed an injured worker to falsely report that he was injured at home.
• A jury was allowed to regard the supervisor’s instructions as misconduct that was offensive to ordinary standards of decent conduct expected of an employer.
• This conduct could be properly described as highly reprehensible.
• The supervisor’s instructions also contravened s. 22.1 of the Workplace Safety and Insurance Act (WSIA).

The appeals Court made a further factual finding which supported the punitive damages award. The conduct of the supervisor and the service manager occurred in the course of their employment. There was no question that the conduct of the supervisors was the conduct of their employer. The major finding, in this case, was that the actions of the supervisors occurred within what the jury had determined to be “a culture within the company whereby employees failed to place adequate importance on best safety practices”. Accordingly, the punitive award against the employer was warranted, because the focus was on the misconduct of the employer’s supervisory personnel.

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Advice on Workplace Safety Issues

Employers have duties and obligations to keep their employees safe, and the actions of management staff can impact the perception of whether an employer is providing an adequately safe working environment. Employers must be aware of what those duties and obligations include to prevent workplace accidents and ensure all staff who oversee employees are trained to carry those duties out as well.

For advice on employer liability, employee rights and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.