Hooper Law recently obtained an order from the Workers Compensation Appeal Tribunal (“WCAT”) setting aside a $150,000 penalty WorkSafeBC had issued against a large construction firm. The case includes important interpretations of an employer’s obligation to supervise its workers, including where a lack of direct supervision may be reasonable.
WCAT Decision No: A2001261 (Re) concerned an excavator that was working near overhead power lines. The employer had assigned a spotter to work with the excavator operator to ensure that the excavator did not enter the “limits of approach”, being the minimum distances workers and equipment must maintain from electrical lines based on their voltage. While the spotter was temporarily away, the excavator operator swung the boom towards the lines, entering the limits of approach. Fortunately, no one was injured. The incident was immediately reported to WorkSafeBC.
WorkSafeBC cited the employer for failing to ensure the workers, including the spotter and excavator operator, had the necessary information, instruction, training, and supervision necessary to ensure their health and safety. WorkSafeBC alleged this was a violation of section 21(2)(e) of the Workers Compensation Act, as well as the Occupational Health and Safety Regulation. WorkSafeBC issued a $150,000 penalty against the employer.
The employer retained Hooper Law to appeal the penalty. Learn more about the appeal process here.
On appeal, we successfully argued that the employer had not violated section 21(2)(e) of the Act. Through documentary and witness evidence, we established that the employer had planned the work to be safely performed, including through meetings with the utility provider, selection of an experienced crew, training on utility hazards, and advising workers about the plan for how to safely work near the overhead power lines. The Vice Chair agreed, finding that the real cause of the incident was not a lack of training or information, but the excavator operator’s decision to go against the plan and operate while the spotter was preoccupied.
This left the issue of whether the employer had failed to adequately supervise the excavator operator. A lack of sufficient supervision can be a violation of section 21(2)(e). WorkSafeBC had found the employer had failed to ensure the crew was supervised at the specific time of the incident. The Vice Chair rejected that direct supervision is always required, particularly for experienced workers. The Vice Chair stated:
I accept that there can be circumstances in which it is reasonably expected that workers performing a task are directly supervised by their employer; however, not every task requires this level of direct supervision. On this particular work site, [the workers] were considered to be senior workers with special experience in operating an excavator in the proximity of high voltage power lines. They had done so on numerous occasions without problem; and the firm had never experienced a prior incident of electrical contact before. Given that [the supervisor] had personally supervised the crew … and it had been repeated to the crew that the use of a spotter was necessary in order to avoid the danger of an electrical contact, I find that it was reasonable for [the supervisor] to have concluded that the crew would have continued to follow the rules if he was not directly watching them.
The Vice Chair cancelled the violation of section 21(2)(e) of the Act, as well as a related violation of the Occupational Health and Safety Regulation. Regarding the only remaining violation for entering the limits of approach, the Vice Chair accepted that the employer had exercised due diligence based on the evidence we presented. The Vice Chair again rejected that constant supervision is required for an employer to demonstrate due diligence, given the employer reasonably expected the workers to follow the instructions given. The Vice Chair stated:
I have found that the firm carefully planned the project, with the participation of the utility provider. The firm clearly instructed the excavation crew about the hazards of working near this high voltage power line and it taught the crew that the limit of approach was three metres. It was also repeatedly made clear to the crew that the excavator should not operate without a spotter on duty ... In the end, it appears that nothing short of full-time supervision by [the supervisor] would have reasonably prevented Mr. C from operating his machine without the assistance of his spotter on the afternoon of March 13, 2019. I have determined that a requirement of due diligence would not have expected the crew to be directly watched and supervised …
The Vice Chair cancelled the penalty.
The case is a reminder for all employers of the importance of ensuring workers are given the necessary information, training, and orientation to safely perform their work. Further, employers must ensure they provide workers with appropriate supervision. The case supports that a failure to directly supervise workers will not, however, always be a violation of the Act nor will it necessarily mean an employer has failed to exercise due diligence. Instead, the level of supervision required varies with the level of experience of the particular workers, and any evidence that the employer reasonably believed the violation would not occur.
If you or a client are facing an administrative penalty from WorkSafeBC, contact us.
