Can an employer and / or a supervisor charged under the OHSA advance a due diligence case by citing the lead-hand had control over the site? 

As most readers know, commencing July 1st, 2014 all Ontario employers are required to ensure that workers and supervisors complete the new MOL Mandatory Awareness Training.

However, as time gets closer to July 1st, our office has been receiving a number of calls from employers questioning who needs to be trained as a "supervisor". 

Although most employers understand the definition of supervisor as provided under the OHSA (a person who has charge of a workplace or authority over a worker)  the definition should not be interpreted narrowly.

The issue of whether "lead-hands" or "working forepersons" are "supervisors" is a question that seems to pop-up.  The question arises particularly in the context of situations where lead-hands or working forepersons are left temporarily "minding the store" during evenings, weekend shifts, or during the absence of a regular supervisor.   

R. v. Jetters Roofing and Wall Cladding Inc. [2000] O.J. No. 5734
provides an insight into how the courts interpret the definition of a supervisor.

In brief, this case involved an employer engaged in construction at a commercial site, when a crew of four workers moving a scaffold contacted an overhead power line.  One worker was killed and three were critically injured.

The employer and supervisor were subsequently charged under the OHSA.

As part of their due diligence defence, the defendant Company claimed that their supervisor had assigned responsibility to the lead-hand, and put forward a claim that the lead-hand had authority over the crew.

During the trial, it came to light that the company appointed a lead-hand to direct the crew to install roofing and wall cladding on a commercial building.  This required the use of a 30 foot scaffold to guide the panels into place.  When moving the scaffold, it came into contact with a 115,000 volt power line that ran parallel to the building.   

Subsequent to the Ministry of Labour investigation, the corporation and the supervisor were charged (not the lead-hand) under the OHSA under various counts. 

The court heard that the supervisor did met with the crew including the lead-hand to review safety requirements. However, the supervisor did not re-attend the site rather leaving the lead-hand in charge.

The lead-hand did not have the authority to hire or fire, but could send someone home if there was a problem and the supervisor would then address any required action(s).  Additionally, the lead-hand did not have the authority to determine the type of equipment to be placed on-site.

In this case, the Ministry of Labour argued that the supervisor had charge of a workplace and had the ultimate authority over workers - citing the a number of factors that ought to be taken into account when assessing whether a supervisor has charge and authority over a workplace. 

Readers may refer to the following factors when determining who is required to undergo supervisory training under the new MOL Mandatory Awareness Training.

1. Ability to hire
2. Ability to fire
3. Ability to exercise discipline
4. Control rate of pay
5. Ability to give awards or bonuses
6. Deciding hours of work
7. Ability to approve vacation time
8. Deciding which equipment is to be brought into a job site
9. Deciding make-up of a work crew
10. Controlling what equipment can be rented
11. Placing tenders
12. Meeting with workers to go over details of a job
13. Meeting with workers to review issues of safety
14. Holds a position on a permanent basic 
15. An ability to promote or demote

In brief, the defendant Company argued that their supervisor was not a supervisor for the purposes of the OHSA that defines a supervisor as a person "who has charge of a workplace or authority over a worker". 

The Company claimed that their supervisor did not exercise either of these functions as the supervisor did not have direct contact with the crew on a day-to-day basis and did not have direct authority over the workers. It was argued, the lead-hand had directed the crew and was considered to be the supervisor on the date the accident occurred.  

The court accepted the MOL position and rejected the defendants arguments that the lead-hand was deemed to be the supervisor and cited the following main points: 

1. The defendant Company did not take all reasonable care or "due diligence", as they failed to have a supervisor in-place for the crew who was doing the work at the workplace.
   
   
2. The defendant company failed to give the lead-hand the necessary power, authority and knowledge to fulfill the duties of a supervisor.

In this case, the corporation received a fine of $80,000 and the supervisor fined $10,000 plus a eighteen month probation to include undergoing an occupational health and safety management course.

The purpose of this information is to provide insight to employers on who the courts consider to be a supervisor, beyond the narrow definition under the OHSA.    

Employers are encouraged to identify individuals (in the office or on site) whose duties include the points offered by the MOL and train those individuals as supervisors for the purpose of safety in order to advance a due diligence defence.

For more information and to obtain the free e-learning modules for the Mandatory OHSA Safety Awareness Training click on the link below.