Due Diligence

8 August 2016

“Due diligence” simply means taking all reasonable care to protect the well-being of employees or co-workers. It is the opposite of negligence. To meet the standard of due diligence, you must take all precautions that are reasonable in the circumstances so that you can carry out your work and your health and safety responsibilities. The single most frequent cause of accidents in the workplace is failing to take the time to think through the work, identify the hazards and deal with them. Due diligence is a legal defence for a person(s) charged under occupational health and safety legislation.

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In defence, if the employer can prove that all reasonable precautions were taken in the circumstances, they may be found not guilty. As an employer, you aren’t expected to anticipate and prevent all possible accidents. However, you must take all the precautions that a reasonable and prudent person would take in the circumstances. If an employer has all the OH&S program elements required by the Occupational Health and Safety Regulation in effect and working well, they will generally be acting in due diligence.

The employer also has to take special steps to control specific hazards in order to show that they are exercising due diligence in particular circumstances. The greater the risk, the greater the need for specific policies, practices and other measures to control the hazard. To prove due diligence, the employer must show that an appropriate program was in place and that several criteria were established: 1. All OH&S policies, practices and procedures must be written and outlined.

This would ensure that the employer is demonstrating workplace safety audits, identifying hazardous practices and conditions and have made necessary changes to correct these conditions. 2. Appropriate training and education must be provided to employees so they understand and carry out their work according to all established policies, practices and procedures. 3. Supervisors must be trained so they are competent in the OH&S program 4. The workplace must be monitored to ensure all employees are following policies, practice and procedures.

Breaches of safety rules must be documented and follow a progressive discipline guideline. 5. Workers must also be responsible to ensure the safety of themselves and their coworkers (a duty of care). This includes following safe work practices and complying with regulations. 6. Employees should be encouraged to report “near misses” and the employer should investigate all incidents and update any OH&S information as needed. 7. All of the above steps should be documented so show how the company’s OH&S program has progressed over time. This up-to-date information will aid in the employers defence of proving due diligence.

Due diligence is demonstrated by your actions before an event occurs, not after. That is, it is proactive, not reactive. Since an ongoing Occupational Health and Safety program within the company forms the basis of due diligence, it is important to have proper documentation of any rules, regulations, activities and improvements within the program. However, this alone won’t amount to due diligence unless you can prove that you have implemented it. It’s pointless to have a mountain of rules and procedures if none of them are being understood and adhered to by the employees.

It’s extremely important to document any reported incidents and the steps that were taken to control or eliminate the hazard and it’s just as important to show that employees have been provided adequate training and supervision to work safely. There is great emphasis on what is considered “reasonable” because of the difficulty of defining the word. Nowhere in the OH&S law does it define what the reasonable steps that an employer was supposed to have taken to prove due diligence. What one person may think is reasonable, another may not.

The courts have a set of guidelines that they follow to determine whether the accused was “reasonable” in their actions: The knowledge and experience of the people involved The nature of the work to be done The likelihood and degree of potential harm Each person’s degree of control (ability to prevent) and; Whether there was a safer alternative Along with these guidelines, the courts must make a decision of the specific circumstance by looking at past cases in which a due diligence defence was raised and see why they won or lost and apply the same rules to compare all situations.

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