Due Diligence in Construction - Lite

The Oxford dictionary defines “Due Diligence” as “reasonable steps taken by a person to avoid committing a tort or offence”. Seems easy to understand and apply, right??Due Diligence?is one of those terms that employers and even safety professionals seem to throw around quite loosely. Due Diligence in Construction is much more complicated than what?the Oxford Dictionary defines it as. The easiest way to explain it in a construction context is to refer to what’s commonly known as “General Duty Clauses” in applicable territorial Health and Safety Legislation. The Occupational Health and Safety Act (OHSA in Ontario, Canada) sets out in Part III (sections 23 to 32) the duties of employers and other persons with Section 25(2)(h) requiring that an employer shall take every precaution reasonable in the circumstances for the protection of a worker. Section 5(a)(1) of OSHA (the Occupational Safety and Health Act in the United States) requires that an employer keep its workplace free from any recognized hazards that cause or are likely to cause death or serious physical harm to employees. Section 3(1)(a) of Alberta's OHSA sets out that every employer shall ensure, as far as it is reasonably practical for the employer to do so the health, safety, and welfare of workers.

As a former Ontario Ministry of Labour Inspector in the Construction Health and Safety Program in Toronto West, I’ve investigated a fair number of incidents. From minor injuries to fatalities, from complaints to collapses. The one thing I can tell you that I’ve learned from my years as an Inspector is that many employers are wildly unprepared to defend themselves when it comes to proving due diligence. Ultimately, due diligence boils down to your ability to prove that you’ve done everything reasonable in the circumstances to protect workers from hazards in the workplace. The key word in all of this is “reasonable”; your definition of reasonable could be vastly different than the legislator’s definition of reasonable when it comes to health and safety in the workplace.

Creating a Health and Safety policy is a good first step organizations take concerning health and safety; in fact, it’s required under Ontario’s OHSA. The problem is that just creating the policy doesn’t mean anything if there’s no Health and Safety Management System in place to ensure the fulfilment the many promises the policy makes. Employers often start by hiring consultants to create a policy and a program for them, ensuring that they have?something?in place should something ever go wrong. They assume that by having a policy, sending their workers for external training, and doing the odd “tool-box-talk” that they’ll be protected should they ever be standing before a Justice of the Peace or Judge faced with charges brought on them by enforcement agencies tasked with enforcing Occupational Health and Safety laws. During my time with the MOL, I would constantly be provided with copies of a company’s policy, records of safety talks, and training records for workers whenever something went wrong and I was called in to investigate. The truth is that most of the time when a company sends their workers for training, they sit in a large room surrounded by their coworkers and listen to someone talk or sift through a PowerPoint presentation and call it “training”. The workers all get their little wallet cards and carry on about their lives. When something goes wrong, the MOL/OHS/OSHA Inspector will take statements from all involved parties, not only witnesses, but other workers as well. They will break down piece by piece and bit by bit every training course the worker has had and ask questions about what they understand and have learned as a result of their training. When the workers don’t know or can’t recall what they’ve learned that little plastic card and the defense of due diligence goes out the window.

It’s not enough to send your workers to training courses and take photocopies of their cards. It’s not enough to create a policy or orientation and have workers sign and tear out the back page. That proves nothing in court. Remember, it’s not what you know, it’s what you can prove. If the government can prove that regardless of the record of training, a worker did not have knowledge of the hazards and how to protect themselves, you will not win that court case and more importantly, you haven’t protected your workers. Most employers pay a consultant or task a HS Professional to write them a policy, but never read it thoroughly themselves.?Prior to?taking a statement, the enforcement agency’s Inspectors will have read through that entire policy and be prepared to ask questions about it. If you’ve never actually read it, you’re in for some trouble. If you’ve never actually read it or at the very least know how to navigate it to find what you need, how can you comply with it or expect your employees to?

Let’s get back to the word reasonable; what is does it really mean? Well, look at it this way, it’s legislated in OHS law in Ontario that a worker who may be exposed to fall hazards receives Working At Heights training from a provider registered with the Ministry of Labour. Most construction companies understand this and acknowledge it as a requirement, so they send their workers in groups of ten or more to a classroom where after an eight-hour course, their workers walk out with a temporary WAH training card and think all is well in the world. Pretty reasonable, they complied with legislation, right? Wrong. Just because you’ve sent your workers to that course, and they all received their cards, you’re not home free yet. If you’re requiring them to work exposed to fall hazards, you also must provide them with a method of fall protection, training on the use of that fall protection specific to the project where it’s being used, have a rescue plan developed, AND complete the pre-use component inspection. Or you’ve sent a sewer and water crew out to complete a connection from the municipal sanitary line to a private line, they’ve all sat through “trenching and excavations” at their local union hall, and you made sure they loaded a trench box onto the trailer before leaving the shop. What you didn’t consider is that the trench Is 10 feet deep, and the box is only 8 feet high, and that it’s previously excavated material, meaning it’s classified as Type 3 by the Regulation in Ontario. You have a nice big section in your policy that talks about trenching and excavations, and all your workers have signed and tore out that back page. See, “reasonable” means that as the employer, you reasonably ought to have known that Type 3 soil requires that box to go right to the bottom of the trench and extend 0.3m above the uppermost edge, how can an 8-foot box be properly placed into a 10 foot trench? You see where I’m going here?

Don’t be fooled into thinking that training cards and a policy protect your due diligence. The best way to protect your due diligence is to ensure that your workers truly know how to protect themselves and that you have provided them with the training and equipment that they need to do so. Sending a group of workers to a course for a few hours where they sit and play on their phones or doze off in a daydream isn’t reasonably protecting them by having them “trained”. Consider how your Internal Responsibility System within the organization functions, how the Health and Safety Management System operates, and if everyone plays their appropriate roles in relation to those things. How do you correct unsafe actions? Do you have a recorded history of corrections, non-compliance, disciplinary measures etc.? Once more, it’s not what you know, it’s what you can prove. The burden of proof is on you, the employer to show that safety isn’t just something that you have to do, but something that everyone at every level of the organization actively participates in.

HS Enforcement agencies and their Inspectors are experts in poking holes in due diligence arguments. It’s not that they aim solely to do that, believe me, from my own experience as an officer the MOL would absolutely love for companies to be so invested in worker safety that they have a superbly functioning HSMS and IRS. Yes, sometimes freak accidents happen, but if your HSMS is a well-functioning one, even the freak accidents can for the most part be controlled to minimize the impact it has on human life. My point with this post is that being back on the private side after years as a MOL Inspector, I see it from a different perspective. A Health and Safety professional can help you obtain what it is that you’re looking for and help protect you in the event of something going wrong, but they’re not miracle workers. They need your absolute cooperation, buy-in, and support in making sure that everyone not only knows what’s required, but understands the policies and procedures in place. Taking every precaution?reasonable?means that you’ve done everything that you possibly can. You’ve created a policy and procedures, you’ve ensured that all your workers have proper training by not only sending them to a course, but continually checking their knowledge of safe practices, and sending them for re-training if they didn’t understand it the first time. Reasonable means that you’ve provided them with the protective devices needed, and you’ve taken part in tool-box-talks and involved workers in the conversation when it comes to their safety. You’ve afforded them the knowledge of all potential hazards in the workplace and associated with the work they do. All of this and more would begin to constitute a strong case for due diligence. In fact, the MOL during the course of an investigation purposely asks you for all of these records, all of this information, and takes statements from workplace parties of all levels to verify if you have been living up to your responsibilities, and if you have, chances are they may finish the investigation brief with “no prosecution recommended”. It’s few and far between that this happens, but I think it’s something we should all strive for as a secondary goal. Your primary goal should whole heartedly be that everyone goes home safe and sound at the end of every day.

John Savoia

#WorkplaceSafety #HealthAndSafety #DueDiligence #RSGInternational #SafetyCulture