Due diligence is a poor defence after the fact, but an excellent policy before things go wrong
One phrase is kicked around quite a bit in the world of occupational health and safety: due diligence. It has often been defined as doing “everything reasonable in the circumstances” to protect people in the workplace. And it is the standard that progressive workplaces apply to their safety management systems.
"Due diligence is the core of everything we do in health and safety,” says Jason Shiell, driver and vehicle safety manager with Hensall District Co-operative (HDC), a major farmer-owned co-op which operates a considerable fleet in addition to warehousing and distribution operations in southwestern Ontario. “We take the regulations – all the things you’ll find in the Canada Labour Code Part II – as the bare minimum of what we need, the starting point, and build up from there. The policies we end up with go far above the reg.”
As a legal concept, due diligence is somewhat of an oddity. Provincial and federal health and safety laws involve “strict liability.” This essentially means that, if a legally prohibited
action or condition took place, the charged person or company is guilty. There is no need for the Crown prosecutor to show intent to break the law, negligence, or even knowledge that the law was being broken.
But a defence of “due diligence” has been available ever since R. vs Sault Ste Marie made it to the Supreme Court of Canada in 1978, after the northern Ontario municipality was
charged because one of its contractors allowed polluted waste to enter a stream. The court ruled that a defendant could be acquitted after demonstrating “everything reasonable in the circumstances” had been done to prevent the law from being breached in the first place.
For the workplaces that are leaders in health and safety, this falls into the territory of “so what”.
“The key for us is to get people home safe at the end of the day,” says Shiell. “Nobody goes out looking for an incident. For us it’s not about dollars and cents or the bottom line. We have to look at it in terms of people.”
Rarely mentioned in legal articles is that due diligence is only used after a serious accident, injury or fatality. Most significantly, it really doesn’t work that often in a courtroom. The time for due diligence is before anything goes wrong, before anyone gets hurt, and long before any government inspector contemplates laying charges.
“We are constantly reviewing our policies and our training,” says Shiell, who recently assumed his role in the fleet.
While overall claims in material handling and distribution are down across the board over the last 10 or 15 years, there are still large shares of hard-to-control musculoskeletal injuries involving slips, trips and falls, strains, sprains and over-exertion. This may actually reflect successful efforts to identify and control risks in other areas.
For HDC, due diligence means “constantly being on the lookout,” says Shiell. “Every policy is looked at every year, reviewed from top to bottom. And we reassess every risk we have identified.” One such risk recently consisted of avoiding a classic health-and-safety trap: replacing one hazard with another. His fleet replaced Liquefied Petroleum Gas (LPG) lift trucks with electric models, partly to eliminate a potential ignition source in buildings that were filled with the dust created by handling bulk crops. But this introduced a new list of potential hazards. The maintenance of charging stations and batteries had to be addressed.
“We had the manufacturer of the lift trucks come in and do training with us,” says Shiell.
The key issue in lift truck safety is preventing the rollovers that, across North America, still account for 40% of fatal lift truck accidents. “Seatbelts are mandatory,” says Shiell. Compliance is not an issue for HDC, mostly because of the nature of the work. “Our operators are basically in the seat from start of shift throughout the day, except for breaks.” It may be more difficult in operations where order picking or other types of work require operators to be constantly in and out of the lift truck.
“In training, we talk about rollover and ejection, and how that can be so easily fatal. It comes across as really heartfelt when we talk on a personal level in the training and we find we
get buy-in from the operators,” says Shiell. This is one area, he adds, where “canned presentations” or online training just don’t have the same impact.
As with most operations that use lift trucks, HDC finds an ongoing challenge in maintaining safe speeds. “On the one hand there is always an emphasis of productivity, and on the other
there is the safe operating speed,” he says. “Supervision is constantly needed.”
Good supervision is a key element in due diligence, whether it involves observing the way trucks move a yard, or that every reasonable step has been followed to ensure that safe procedures are followed at a fuel island. From the health and safety point of view there are two basic requirements for supervision. First, the supervisor must be qualified to organize the work, knowledgeable on the related laws and regulations, and familiar with the hazards in the workplace. Second, the supervisors can and do provide training, correction and progressive discipline for safety infractions.
Due diligence, as a defence, does not often lead to acquittal in the serious cases that come to court. But due diligence as a guiding principle in managing health and safety wins every day that workers go safely home to their families.
— David Dehaas is a health and safety professional and award-winning freelance writer based in Toronto.