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When evaluating employees for promotion, or when hiring for supervisory positions, employers typically give careful consideration to candidates’ qualifications to perform the substantive elements of the role – i.e. educational background, work experience, personal achievements and the like. That said, one factor that is often overlooked is the candidate’s knowledge of and familiarity with (i) potential or actual hazards in the workplace, and (ii) the duties prescribed by the Occupational Health and Safety Act (the “Act”).
According to section 25(2)(c) of the Act, “an employer shall, when appointing a supervisor, appoint a competent person”. The definitions of “competent person” and “supervisor” are set out in section 1 of the Act as follows:
“‘competent person’ means a person who,
a) is qualified because of knowledge, training and experience to organize the work and its performance,
b) is familiar with this Act and the regulations that apply to the work, and
c) has knowledge of any potential or actual danger to health or safety in the workplace”
“‘supervisor’ means a person who has charge of a workplace or authority over a worker”.
If an employer fails to appoint a competent supervisor, that will represent a direct contravention of the Act, and will also create exposure to further unintended liability based on section 66(4) of the Act, which states:
“In a prosecution of an offence under any provision of this Act, any act or neglect on the part of any manager, agent, representative, officer, director or supervisor of the accused, whether a corporation or not, shall be the act or neglect of the accused.”
In other words, the conduct of an incompetent supervisor, whether condoned by the employer or not, is deemed to be the conduct of the employer for the purposes of liability under the Act.
Similar supervisor competency requirements exist in other Canadian jurisdictions. In fact, in a recent decision from New Brunswick (Ryan v. Moncton (City), 2014 CanLII 51635), an arbitration panel was required to determine whether an employer violated a collective agreement by (i) denying the grievor a promotion, and (ii) promoting a worker with lower seniority instead. At the hearing, the employer asserted that, among other things, the grievor lacked knowledge of the applicable health and safety legislation. The grievor did not testify to his level of health and safety knowledge.
Recognizing that the collective agreement permitted the employer to consider both qualifications and experience when filling vacancies, the panel determined that the employer was justified in denying the grievor a promotion on the basis of a lack of demonstrated qualifications. Accordingly, the grievance was dismissed.
In light of the foregoing, employers are reminded that, in filling supervisory positions, it is not only appropriate to consider candidates’ knowledge of applicable health and safety legislation and workplace hazards before appointing a candidate to a supervisory role, it is also mandatory under the Act.
Ryan D. Campbell