Is your workplace prepared for an unannounced inspection?
During a presentation entitled Blitz-Proof Your Workplace: How to Survive and Thrive During an Inspection, Cynthia Sefton and David Reiter, partners at Aird and Berlis LLP and occupational health and safety law specialists, shared tips on how to prepare your workplace for an inspection, how to interact with inspectors during a site visit and discussed the rights of employers and individuals facing an investigation and charges.
The session was part of the annual Partners in Prevention Conference held in Mississauga, Ont. by Workplace Safety and Prevention Services.
Every year the Ministry of Labour (MOL) visits workplaces without warning as part of its Occupational Health and Safety Act enforcement strategy, Sefton explained, adding the MOL recently announced it will be conducting over two dozen workplace inspection blitzes in 2018 and 2019. The first blitzes began at the beginning of May and the schedule is available on the website, Sefton noted.
“While some people have the view that the purpose is to find faults so that your business can be prosecuted, that’s a little unfair,” she explained. “It often does result in prosecutions, but I think the main focus is really to help the public and workers be safe.”
An inspection is not an investigation, Sefton explained.
“If a ministry inspector attends, he or she is looking for hazards, mistakes, things where people can get hurt,” she said. “The inspector comes to see if there is compliance, the decision to investigate as a possible offence comes later.”
In the past few years, there has been an increase in charges laid against individuals with responsibilities in the workplace in addition to charges against the company or owner.
Sefton said fines to an indivudal are often a smaller amount than a business would pay, but it’s coming out of his or her pocket.
“If you’ve never been charged with a provincial offence you will want to keep it that way,” she said.
“It’s not a pleasant experience, quite apart from the financial liabilities to which you are exposed. It’s a very unpleasant experience for you, your family and your co-workers.”
It’s also an offence to refuse to co-operate with an inspection, Reiter explained, adding everyone onsite needs to be familiar with their obligations and work together.
He talked about the internal responsibility system, the importance of having a point person onsite who is in control of the premises and keeping detailed records and documenting everything so that when an inspector does show up, you are organized and able to produce the necessary documentation.
“You’re going to have subcontractors working on your sites and you’re going to be responsible for them just like their employer is responsible for them. You’re going to need to be aware of that during an inspection because the inspector may ask for basic health and safety records for the subs’ employees because they’re viewed as your employees,” said Reiter.
Documentation will also help if you are facing charges or jail time.
“If you can’t prove it, it didn’t happen. That’s the bottom line,” stated Sefton. “If you’re going to the effort of actually doing all this good stuff for crying out loud get credit for it.”
Sefton said inspectors have a lot of power. They can ask that certain testing be performed, they can tell you not to use equipment if it presents a hazard that can’t be immediately corrected and they can interview people individually.
“If it’s a serious enough thing that you are really concerned about an individual being at risk of being investigated then I think it’s fair to say, could they talk to a lawyer, could they talk to their supervisor or could they have their supervisor sit in,” said Sefton. “If the answer is ‘no’ then that’s the answer. Unless it’s a really serious situation, I would recommend talking.”
If an individual wants to speak to a lawyer, it should be an independent lawyer, not the company’s counsel, Sefton advised.
“There could be a conflict between the duty owed to the individual and the duty owed to the company. We always recommend that the company pay for the advice,” said Sefton. “You don’t want the person to go take a second mortgage because they want to talk to a lawyer for 15 minutes.”
An inspector should let you know if an inspection moves into an investigation.
“The good ones will (let you know) because, if at the end of the day, if they are investigating under the guise of an inspection, it’s completely possible that the evidence will not be allowed to be used against the person,” said Sefton. “They want to do it right because their job is to ensure compliance.”
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