9.3 Record Keeping and Tracking Incidents
The purpose of record keeping does not imply that the employee or the company is at fault for an illness or injury. In addition, just because a record is kept doesn’t mean the employee will be eligible for worker’s compensation. The record-keeping aspect normally refers to the keeping of incidence rates, or the number of illnesses or injuries per one hundred full-time employees per year, as calculated by the following formula:
Two hundred thousand is the standard figure used, as it represents one hundred full-time employees who work forty hours per week for fifty weeks per year. An HR professional can then use this data and compare it to other companies in the same industry to see how its business is meeting safety standards compared with other businesses. This calculation provides comparable information, no matter the size of the company. If the incidence rate is higher than the average, the HR professional might consider developing training surrounding safety in the workplace.
Liabilities
Can a company ever be legally responsible for H&S violations? Yes it can, due to the Westray Law or Bill C-45.
Westray Law or Former Bill C-45
The Westray Law, former Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations), came into force on March 31, 2004. It modernized the criminal law’s approach for establishing the criminal liability of corporations for workplace deaths and injuries. Specifically, it:
- established rules for attributing criminal liability to organizations, including corporations, for the acts of their representatives
- established a legal duty for all persons directing the work of others to take reasonable steps to ensure the safety of workers and the public
- set out factors that a court must consider when sentencing an organization
- provided conditions of probation that a court may impose on an organization
An organization can be held criminally liable if:
- a representative or representatives of the organization acting within the scope of their authority were a party to the offence; and,
- a senior officer responsible for the aspect of the organization’s activities relevant to the offence, departed markedly from the standard of care that could reasonably be expected to prevent the representative from being a party to the offence.
- a senior officer acting within the scope of authority was a party to the offence; or,
- the senior officer had the mens rea for the offence, was acting within the scope of authority and directed the work of other representatives to perform the act element of the offence; or,
- the senior officer did not take reasonable measures to stop the commission of the offence by a representative.
Section 217.1 of the Criminal Code creates an occupational health and safety duty for all organizations and individuals who direct the work of others in Canada. It requires all organizations and individuals who undertake or have the authority to direct how others work or perform a task, to take all reasonable steps to prevent bodily harm to the person performing the work or task, and to any other person.
( Government of Canada, D. of J., 2019)
Examples of Westray Law
In the video Westray, there is an account of a coal min disaster. This event killed 26 men in Nova Scotia in 1992. The video is focused on the widows of miners who were killed and other miners who where not in the mine the day of the disaster.
Video: “Westray” By Paul Cowan – National Film Board of Canada [1:19:40] (Link to Video)
On March 17, 2008 a paving company (Transpave) was charged and convicted of criminal negligence and fined $100,000 in the death of an employee, plus a $10,000 victim surcharge.
On May 17, 2007, Mark Hritchuk, a Service Manager at a LaSalle, Quebec auto dealership was charged with criminal negligence after one of his employees caught on fire while using a makeshift fuel pump that had gone unrepaired and broken for several years. Mr. Daoust, a 22 year employee with the company, was engulfed in flames after a spark ignited fuel which had spilled on him, while he attempted to fill the gas tank of a vehicle whose fuel gage had broken and needed repairing. The employee survived but received third degree burns to 35% of his body. The case was brought before a court of inquiry on March 10, 2009. The case went to court in March 2012. Mr Hritchuk pleaded guilty of unlawfully causing bodily harm. (Government of Canada, C.C.O.H.S., 2023)
For more details see Westray Bill (Bill C-45) – Overview – Canadian Centre for Occupational Health and Safety
Purpose of Worker Compensation
It is important to note that the main intent of the worker’s compensation is to ensure that the employee return to his/her original job.
However, if the employee cannot return to his job due to permanent injuries, there are four options available:
- Cash payouts (for permanent disability)
- Wage loss payments (if worker can no longer earn as much)
- Medical aid
- Vocational rehabilitation
