Q&A: As a manager, can I be charged with an Occupational Health and Safety Act infraction?

A: The short answer to this question is “yes”!

In reality, the New Brunswick Occupational Health and Safety Act imposes responsibility for the health and safety of employees on a surprising array of people, each with authority over various aspects of the work environment.

The Act imposes many obligations on employers. Some of these obligations are general, like the duty to take every reasonable precaution to ensure the health and safety of employees. Other obligations require the employer to adopt safety policies, establish systems of inspection, or provide the necessary tools to perform work safely. Some employer obligations can be very specific, depending on the industry. For example, regulations establish detailed procedures for, among many other things, shutting off machinery, electrifying electrical lines, or protecting against falls from height.

Managers, along with officers, directors, supervisors or any other person with authority over an employee, are all at risk of being charged with violating the Act or the regulations if they fail to meet their obligations.

The Act also extends health and safety obligations to contractors and the owner of any worksite, which could include a private homeowner who has contracted out renovation or construction work.

The catch for managers, supervisors, etc. is that the Act defines “employer” as including “a manager, superintendent, supervisor, overseer or other person having authority over an employee”. As a result, any obligation imposed on the employer is also imposed on those with authority within the workplace. Also, where a corporation has been convicted of an offence under the Act, ss.49 makes any officer, director, manager or agent of the corporation a party to the offence if they “knowingly directed, authorized, assented to, acquiesced or participated in the commission of the offence”.

Not every breach of the Act will result in charges against a manager or lead to a conviction. The Act does not impose strict liability on managers, or others in similar supervisory roles, and a manager can defend his or her actions by demonstrating that he or she exercised due diligence.

Anyone who has been convicted of an offence under the Act, is liable to pay a fine up to $250,000 or imprisonment for up to six months for each day that the offence continues.

In addition to potential charges for safety infractions/violations, managers could also face a complaint of discrimination by an employee if the manager retaliates against an employee who has tried to enforce the Act or who has refused to perform unsafe work.

Finally, while employees may not be surprised that their bosses and managers could be charged with violating the Act, it would likely come as a big surprise to many employees that they themselves could be charged in some circumstances. Under ss.12 of the Act, employees are responsible for, among other things, conducting themselves so as to ensure the safety of other employees, reporting any safety hazard they become aware of and cooperating in an investigation. Breach of any of these obligations could lead to charges against the offending employee.

Of course, most managers, supervisors and even employees make safety a priority because
no-one wants to see a co-worker injured or killed on the job. We are all human, and mistakes do happen despite best intentions. Knowing that you, as a manager, supervisor or employee could be convicted for a serious lapse in job safety will hopefully act as additional incentive to not cut corners and to remain vigilant at all times.

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