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12 October 2011
Many Canadian jurisdictions have enacted legislation to amend occupational health and safety regimes to protect workers from workplace violence and the danger of encountering violent persons at the workplace.(1) Despite the proliferation of occupational health and safety provisions designed to protect against workplace violence, occupational health and safety enforcers have rarely, if ever, prosecuted employers when workers are victims of workplace violence. A recent case from Alberta suggests that this may be about to change.
On October 31 2006 a 34-year-old female security guard in her second week of employment with Garda Canada Security Corporation, a provider of security solutions, was assigned to guard the construction site of a retail business overnight. She had obtained her security guard licence three weeks before being assigned to work alone. The construction site was not fenced off to prevent unauthorised entry and, during her shift, the security guard heard voices and noises suggesting that an intruder had entered the construction site. She used a telephone provided by Garda for emergencies to call the dispatch centre to report the presence of the intruder, but her call was transferred to 911. After the security guard ended the 911 call, the intruder attacked, sexually assaulted and threatened to kill her. The intruder was arrested by police who responded to the security guard's 911 call.
Following an investigation by police and occupational health and safety inspectors from the Alberta Ministry of Employment and Immigration, Garda was charged with failing to ensure, as far as was reasonably practicable, the health and safety of the security guard as required by the general duty provision of Alberta's occupational health and safety legislation. In February 2011 Garda pled guilty, and on July 5 2011 it was sentenced to a penalty of more than C$90,000, which included a fine of C$5,000 and an C$87,000 contribution to the Alberta Construction Safety Association. This may be the first occupational health and safety conviction for a violent act to a worker by an intruder in a workplace.(2)
Under the Alberta Occupational Health and Safety Code, employers must complete a hazard assessment if a worker will be working alone and assistance is not readily available if there is an emergency, injury or illness. This particular construction project was not protected against access by the public, nor were there specific communication devices or procedures in place for the security guard to call for assistance in case of an emergency. The employer acknowledged its failure to perform a risk assessment of the worksite. The court heard that if a proper risk assessment had been completed, it may have led to further action to protect the worker, such as requiring an hourly call to the Garda dispatch centre, provision of a radio or requirements for the mobile patrol to check in regularly on guards who are working alone.
Working alone legislation adds another layer to the already complex occupational health and safety duties relating to violence. The definition of 'working alone' varies across Canada. In British Columbia, 'working alone' is defined as "employees working in circumstances where assistance is not readily available to the worker in case of an emergency or if the worker is injured or in ill health". In Quebec, working alone occurs "where a worker performs a task alone in an isolated environment where it is impossible for him to request assistance". The key elements of working alone are isolation and an inability to contact help in case of emergency, illness or injury. A worker is alone not only when he or she is on their own, but also when he or she cannot be seen or heard by a co-worker and when he or she cannot expect another worker to check in. As a result, working alone includes not only those workers who are truly alone in the workplace, but also those who are isolated from contact with others.
Working alone provisions exist in the occupational health and safety legislation of many provinces, and are in addition to workplace violence-related obligations to assess risks and take preventive measures.(3) For example, Part 28 of the Alberta Occupational Health and Safety Code considers working alone to be a hazard for the purposes of hazard assessment, elimination and control. This means that Alberta employers must consider the risks associated with working alone when they perform a workplace hazard assessment, and must incorporate the working alone risks into their prevention policies and procedures. More specifically, Part 28 requires employers to provide an effective communications system that includes regular contact by the employer, or its designate, with the worker working alone. Most working alone legislation places similar obligations on employers to:
Working alone legislation focuses primarily on creating processes for repeated checks on workers at appropriate intervals and establishing effective communications. Employers which are not subject to specific working alone legislation must still be cognisant of the dangers for employees working alone. For example, while Ontario does not have specific working alone legislation, the Ontario Ministry of Labour states that it relies on the employer's general duty to take every reasonable precaution for protection of the health and safety of workers to protect workers working alone.(4)
The prosecution and conviction of Garda Canada Security Corporation demonstrates the intersection between protecting workers working alone and protecting workers against workplace violence. Working alone increases a worker's chance of being a victim of workplace violence, and those working alone in an area that can be directly accessed by the public are at even greater risk. It is also a reminder that employers must consider their intersecting duties to protect against workplace violence and working alone risks when conducting hazard assessments.
For further information on this topic please contact Cheryl A Edwards, Shane D Todd or Samantha Seabrook at Heenan Blaikie LLP by telephone (+1 416 360 6336), fax (+1 416 360 8425) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org).
(1) The following workplace violence legislation exists:
(2) In an August 2009 prosecution against the Centre for Addiction and Mental Health the employer was fined C$70,000 for failing to protect workers after two workers were assaulted by mentally ill patients being treated in the facility. The employer had failed to provide appropriate written measures, procedures, communication devices and training for protection of workers.
(4) Ontario Ministry of Labour, "In the Workplace: FAQs", online at www.labour.gov.on.ca/english/hs/faqs/workplace.php#alone.
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Shane D Todd