Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER March 10, 2014 March 10, 2014 EMPLOYMENT LAW EMPLOYMENT LAW 5 The Refresh Leadership Live Simulcast is your opportunity to come together with members of our business community to learn more about the principles of great leadership. John Mackey The Game of Life Stop Global Whining! Dick Vitale Christine Cashen Conscious Leadership Co-founder and co-CEO of Whole Foods Market Legendary sportscaster and former professional and college basketball coach Professional speaker and expert on handling conflict and stress Join Us for an Inspirational Leadership Event. REGISTRATION REQUIRED, VISIT REFRESHLEADERSHIP.COM/LIVE "Every year, Refresh Leadership Live Simulcast has an outstanding lineup of speakers who engage the audience and motivate them to want to grow as leaders." — Bob Funk, CEO and Chairman of the Board, Express Employment Professionals Wednesday, April 16, 2014 #refreshleadership Registration is required. Visit, RefreshLeadership.com/LIVE Assisting another employer's worker Assisting another employer's worker doesn't create duty to report accident: Court doesn't create duty to report accident: Court B.C. Hydro was not required to report an accident that injured a contractor work- ing on its power lines, an arbitrator has ruled, even though company employees rushed to the scene to help the injured man. In the fall of 2009, B.C. Hydro granted a contract to replace com- ponents of its overhead electrical distribution system near Fernie, B.C., to Arrow, a power line con- struction and maintenance fi rm. As the prime independent con- tractor, Arrow was responsible under provincial legislation for the protection and safety of all workers performing the work. ere were no B.C. Hydro work- ers on the project. On Nov. 26, 2009, an Arrow power line technician came into contact with an energized part of the overhead electrical distribu- tion system and suff ered electrical burns. A co-worker tried to call for assistance on his cellphone but was unsuccessful. He then used his radio. A B.C. Hydro crew was in the area and heard the radio call, so they rushed to the scene and res- cued the Arrow worker. By that time, an ambulance had arrived and the Arrow worker was taken to the hospital. B.C. Hydro employees stayed to repair damage from the accident to restore electrical service. ey also began to investigate. B.C. Hydro's line manager went to the hospital to give doc- tors materials on how to treat electrical injuries and went to the accident site where he reminded an Arrow employee to report the accident to WorkSafeBC, the province's workers' compensa- tion board. Arrow reported the accident about fi ve hours after it occurred. e next day, WorkSafeBC of- fi cers arrived at the site to begin their own investigations. One of them knew the family of the in- jured worker but didn't feel that would be a problem. On Jan. 25, 2010, that offi cer is- sued a report citing B.C. Hydro for violating the B.C. Workers' Com- pensation Act by allowing the ac- cident scene to be disturbed and not reporting the accident, since it was the owner of the worksite and an employer related to the worksite. But B.C. Hydro challenged the report, arguing Arrow was the employer responsible for the worksite and it ensured the con- tractor would report it in a timely manner. B.C. Hydro also said it did what it could to preserve the accident site for the investigators but it had to restore electrical service as quickly as possible. A review offi cer cancelled the citation for disturbing the acci- dent site but confi rmed the order for failing to notify WorkSafeBC of the accident. e obligation to report the accident wasn't re- stricted to employers with work- ers involved, said the review of- fi cer — an employer that has a "significant connection to the worksite" should also report it to ensure the board has the timeliest notifi cation possible. Unsatisfied, B.C. Hydro ap- pealed to the B.C. Supreme Court, arguing the offi cer who issued the original order was biased because of his connection to the injured worker. But the court found there was little reason to think the origi- nal offi cer was biased. Also, B.C. Hydro didn't make this argument until its appeal so the argument was dismissed for not being raised in a timely way. e court also found the review offi cer was reasonable in dismiss- ing the argument that B.C. Hydro instructed Arrow to report the ac- cident and therefore negated the need for both to report. "Since all that was required was a telephone call to the board, the simultaneous obligation to report did not impose unreasonable du- plication of eff ort or expense and (the act) does not excuse the fail- ure to do so," said the review of- fi cer supported by the court. However, the original offi cer and reviewing offi cer adopted an interpretation of the reporting requirement that was too broad, found the court. ough it was reasonable to interpret the defi nition of "em- ployer" as not limited to just the employer of the injured worker, in this case B.C. Hydro was not an employer with a reporting obliga- tion, said the court. The legislation specifies the diff erence in duties between the owner of a worksite and an em- ployer on the worksite, and an owner is not obligated to report an accident, said the court. Other than ownership, B.C. Hydro's connection to the work- site and the accident was because its workers responded to the dis- tress call and provided "co-opera- tion and assistance" at the scene. It should not be penalized for its actions, said the court. "B.C. Hydro submits, and I agree, that the interpretation of (the act) adopted by the board in this case would, if allowed to stand, have a chilling eff ect on any employer who was consider- ing whether to assist, as a Good Samaritan, in the rescue of an un- related worker," said the court. "I agree with the submission of B.C. Hydro that before an employer can be found to have a reporting obligation under (the act), that employer must, at a minimum, either be the employer of the injured worker or must be an employer whose workers are at a multiple-employer workplace within the meaning of (the act) at the time of the accident." e order for B.C. Hydro to report the accident was dis- missed and remitted to the WorkSafeBC review division for reconsideration. See British Columbia Hydro and Power Authority v. British Columbia (Workers' Compensa- tion Board), 2013 CarswellBC 4010 (B.C. S.C.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, see www.employ- mentlawtoday.com. Jeff rey Smith Legal View

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