While WorkSafeBC’s Occupational Health and Safety Regulation contains thousands of requirements, fall protection violations, under section 11.2 of the Regulation, are one of the most common sources of administrative penalties. This is because fall protection violations are generally treated as “designated high risk violations” meaning WorkSafeBC can automatically consider such violations for administrative penalties. It is also because certain industries, such as roofing, are almost always covered by the fall protection requirements, making repeat violations more likely.
If you’re an employer and have received a fall protection penalty, you can dispute it by requesting a review. You must file the request for review within 45 days of the penalty order. Learn more about the appeal process.
Fall protection penalties can be overturned on appeal; however, it is important to know what types of arguments are most likely to be accepted. This includes arguing due diligence as well as that the penalty was unnecessary.
While an employer can dispute a fall protection penalty by arguing that the violation did not occur, fall protection violations themselves can be difficult to challenge. Often, WorkSafeBC Officers will take photos of workers at height without any form of fall protection. Accordingly, in face of that photographic evidence, it is unlikely that an employer can show that no violation took place.
As is the case with any administrative penalty issued by WorkSafeBC, employers can dispute fall protection penalties by establishing that they exercised "due diligence." Due diligence includes the reasonable steps that an employer took before the violation to try to prevent it. In a recent fall protection penalty case (Review Division Decision No. R0278394), we successfully argued that our client had exercised due diligence based on the fact that the worker and supervisor involved in the fall protection violation had been properly trained, subject to spot inspections, and given specific instructions to avoid the situation that led to the violation. In those circumstances, the Review Officer agreed that our client had exercised due diligence and cancelled the $27,000 penalty, stating:
"I am satisfied that the employer took all reasonable steps to ensure compliance with the Act and Regulation, and had no reason to believe that the supervisor would select an inappropriate fall protection system... I find that the violation which occurred in this case happened because the supervisor disregarded the employer's specific instructions and training, and acted in a way inconsistent with the employer's reasonable expectations, despite his orientation, training, and monitoring by the employer. ... I cancel the penalty decision issued by the Board."
Employers can also argue that the penalty was unnecessary. In a recent case, (Review Division Decision No. R0271239) we successfully argued that the employer’s history showed that it did not require the penalty to try to motivate the employer, and that a warning letter was more than sufficient. The Review Officer hearing that appeal agreed, cancelling the $20,000 penalty, stating:
"The employer submits that a penalty was unnecessary as a matter of general or specific deterrence, or as a way to motivate it to comply in the future, and argues that a warning letter would have been sufficient. In this case, the employer did not delay in correcting any deficiencies and addressed the matter immediately and came into compliance before the OHO had made any mention of an administrative penalty or a warning letter. The employer also points to its three-year firm file history, which reveals a positive compliance history, including numerous inspection reports where no violations were identified. The employer has also never received a warning letter for fall protection issues or for any other issues.
Based on my review of the file, I am satisfied that a warning letter to the employer is sufficient to motivate future compliance. … Accordingly, I allow the employer’s request on this review …"
In another case involving a fall protection penalty, (Review Division Decision No. R0262833, R0263518) we successfully demonstrated that WorkSafeBC had issued too many penalties to a particular employer for fall protection violations, and that the employer had not been given enough time between penalties to correct its activities. The Review Officer agreed cancelling the $29,000 penalty, stating:
"The employer submitted the October 18, 2019 violations should not have resulted in a penalty, as it was for the same violations as the September 27, 2019 penalty and occurred only three weeks after those violations. The employer noted that, as the penalty for the September 27, 2019 violation was imposed after the October 18, 2019 violation had occurred, any motivating effect of a penalty had not yet occurred. The employer provided references to previous Review Division decisions in support of this submission. …
I find that, as the violations in question were only three weeks apart, and as the penalty for the October 18, 2019 violations was imposed only about a month after the previous penalty, a second penalty would not provide additional motivation for the employer or other employers to comply going forward. … As a result, I allow the employer’s request on this review and cancel the administrative penalty."
While these are just three examples of our past successes, they demonstrate the types of arguments that can help in overturning a penalty. As each case is unique, it is important to consider what factors may support overturning your penalty based on your facts.
If you would like to discuss the appeal process for an administrative penalty, contact us.
