A critical element of the health and safety regime in any workplace that employs heavy machinery is the presence of signalers. Mandated by regulation, the employment of effective signalers is heavily enforced by the Ministry of Labour.
Under the Construction Projects Regulation, a signaler may not perform other work while acting as a signaler. Previous cases held that in order to meet this requirement, the signaler must be doing only the work of a signaler at the time they were signaling. A recent case has helped refine the scope of this exclusivity requirement.
The question before the Court in Trisan Construction was whether a well-enforced policy which allowed signalers to perform other work before and after, but not simultaneously to, signaling was sufficient due diligence.
The deceased worker had been working a bulldozer in a yard in which fill from an excavation was being dumped. When trucks came in with additional fill to be dumped on the pile, the worker was required to exit the bulldozer and to act as signaler for the dump trucks.
After a dump truck arrived on site, the worker signaled the dump truck. However, before the dump truck had reversed, the signaler returned to the bulldozer. The dump truck did not turn at the proper angle, and ended up striking the bulldozer, crushing the worker between the bulldozer and the dump truck. The worker ultimately succumbed to his injuries.
There was evidence that suggested that if the worker had been properly positioned in accordance with employer policy, the accident would not have occurred.
In a previous decision, the Court ruled that at the time of the accident, the worker had also been engaged in operating the bulldozer. This meant he was not exclusively performing the work of a signaler, contrary to the requirements of the legislation. The only remaining issue before the Court was whether the employer had been duly diligent to avoid that breach.
The employer’s health and safety protocol, which was known to the deceased worker, contemplated that the bulldozer operator would be required to act as signaler for incoming dump trucks. While that worker was serving as signaler, they were to devote their exclusive attention and care to signaling. The policy further set out compliant requirements for signaler positioning which were consistent with the Act.
The Crown took the position that the legislation prohibits a person who will perform signaling duties during a “period of work” from assuming any other duties during that period. In other words, there needs to be a clear delineation between the period of time when a worker is performing duties as a signaler as opposed to when they are performing other duties. The Crown alleged the policy did not create a sufficiently clear delineation.
However, the Court disagreed. The Court held that the policies were sufficient to create the necessary sharp delineation between the employee’s responsibilities as a bulldozer operator and as signaler. The Court determined that the presence of a signaler’s exclusive attention had to be determined with reference to a “precise and critical moment,” rather than a period of time. In this case, the policy was sufficient to advise workers of the need to focus only on their signaler duties during the times when they were serving as signaler.
Given that the worker was aware of the policy and had never been seen to disobey it prior to the date of the accident, the Court concluded that the employer had been duly diligent in advising the worker on the correct protocol and on ensuring that protocol was followed.
As a result, the employer was acquitted of the charges.
The decision of the Court should be a relief for employers. A requirement that would have required a substantial “cooling off” period between doing signaling work and doing other work would have been impractical and would have been unlikely to enhance workplace safety.
However, it is worthwhile to remember that the Court found that the worker had not acted exclusively as a signaler. As a result, the employer was in breach of the Regulation. However, the presence of the policy, and good enforcement mechanisms, was sufficient to defeat the charge.
Employers should be mindful of this lesson, and ensure proper review, education and enforcement of their health and safety policies are continuous and ongoing.