Due Diligence
04
Nov
, 2021
Due Diligence
Due Diligence simply means “doing what is reasonably practicable” to protect the well being of employees, co-workers, students and visitors. To comply with the standard of due diligence, all reasonable precautions must be taken, even to the point of exceeding generally accepted practices. Due diligence requires the identification of hazards and the implementation of specific preventative measures to protect employees from loss, injury, illness and disease.
Due Diligence is addressed in government legislation under the Alberta Occupational Health & Safety Act and is commonly referred to as the "General Duty Clause" (L10115). The clause reads:
"Every employer shall ensure, as far as reasonably practical for them to do so, the health and safety of workers engaged in the work of that employer, and those employees not engaged in the work of that employer but present at the work site at which the work is being carried out; that the workers engaged in the work of that employer are aware of their responsibilities and duties under this Act and the regulations.
Every worker shall, while engaged in an occupation, take reasonable care to protect the health and safety of him/herself and of other workers present while he/she is working, and co-operate with his/her employer for the purpose of protecting the health & safety of him/herself, other workers engaged in the work of the employer, and other workers not engaged in the work of that employer but present at the work site at which that work is being carried out."
Due Diligence is also mentioned in the Criminal Code Bill C-45(Scetion 217.1) which states :
The bill established new legal duties for workplace health and safety and imposes serious penalties for violations that result in injuries or death. It also establishes rules for attributing criminal liability to organizations, including corporations, for the acts of their representatives and creates a legal duty for all persons directing work to take "reasonable steps" to ensure the safety of workers and the public."2.17.1 Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task."
Penalties
Failure to prove that you have been diligent in complying with occupational health and safety legislation can result in significant penalties. Conviction on a first offense can lead to a fine of up to $500,000, plus $30,000 per day for continuing the offence and/or a jail term of up to six months per violation. A second conviction can result in a fine of up to $1,000,000 plus $60,000 per day for continuing the offence and/or a jail term of up to one year per violation.What factors are considered in establishing a due diligence defense?
In determining whether your defense of “due diligence” is valid, a judge or jury considers three main factors:- Foreseeability — could a reasonable person have foreseen that something could go wrong?
- Preventability — was there an opportunity to prevent the injury or incident?
- Control — who was the responsible person present who could have prevented the incident or incident?
Why should you practice due diligence?
"Due diligence" is important as a legal defense for a person charged under occupational health and safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.How does an employer Establish Due diligence?
The conditions for establishing due diligence include several criteria:
- The employer must have in place written OH&S policies, practices, and procedures. These policies, etc. would demonstrate and document that the employer carried out workplace safety audits, identified hazardous practices and hazardous conditions and made necessary changes to correct these conditions, and provided employees with information to enable them to work safely.
- The employer must provide the appropriate training and education to the employees so that they understand and carry out their work according to the established policies, practices, and procedures.
- The employer must educate and train the supervisors to ensure they are competent persons, as defined in legislation. Ensure that managers and supervisors: Talk to new employees about safety during orientation training. Meet regularly with staff to discuss health and safety matters. Inspect areas of the workplace under their responsibility, and respond promptly to unsafe conditions and activities. Pay attention to routine and non-routine activities, ensuring that employees understand the hazards and the preventative measures to be followed.
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The employer must monitor the workplace and ensure that employees are following the policies, practices and procedures. Written documentation of progressive disciplining for breaches of safety rules is considered due diligence.
- There are obviously many requirements for the employer but workers also have responsibilities. They have a duty to take reasonable care to ensure the safety of themselves and their coworkers - this includes following safe work practices and complying with regulations.
- The employer should have an incident (accident) investigation reporting system and investigation program in place. Employees should be encouraged to report "near misses" and these should be investigated also. Acting on the recommendations, as well as incorporating information from these investigations into revised, improved policies, practices and procedures will also establish the employer is practicing due diligence.
- The employer should document, in writing, all of the above activities. This documentation will give the employer a history of how the company's occupational health and safety program has progressed over time. Second, it will provide up-to-date documentation that can be used as a defense to charges in case an incident occurs despite an employer's efforts.
- Employers must also ensure that all people who are at the workplace are included, such as contractors, visitors, students/interns and volunteers.
Remember, due diligence is demonstrated by your actions before an event occurs, not after.
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