'Witnesses seemed to agree that there were accepted, safe rigging methods in place, but none of those were followed,' lawyer
“Employers should keep in mind that there can be hazards in any workplace and they should proactively address those hazards before a serious accident occurs – and make sure that you're providing appropriate training and supervision to employees on the front end rather than waiting for a serious accident to occur.”
So says Faraz Kourangi, an employment lawyer at Williams HR Law in the Greater Toronto Area, after an Ontario employer and two supervisors were convicted of violating the province’s Occupational Health and Safety Act (OHSA) by failing to properly train and supervise employees involved in a fatal construction site accident.
Limen Group Construction is a Toronto-based firm that worked on a condominium tower project as a subcontractor engaged by the developer and owner of the site. Limen was contracted to perform formwork, rebar, and concrete placement for walls and structure reinforcement.
Formwork on the underground parking levels for the tower created waste concrete that was gathered into wooden bins. Rebar was often embedded in the concrete so that when the concrete dried it created hooks that could be used to hoist the concrete in short lifts by a crane and into the bins.
There were four approved methods for lifting waste concrete out of the site: wrapping crane chains around the wooden bin; wrapping the chains around the concrete; lifting two or three concrete blocks into a large green bin and then lifting the entire bin; or placing the concrete into a steel bin and lifting that bin with fixed anchor sites.
It was not an approved process to hook the crane directly to the embedded rebar to lift the concrete block out of the site without wrapping chains around the block, as the rebar wasn’t always secure.
Worker crushed by falling concrete
On Dec. 14, 2020, a crane was lifting a concrete block over the construction site with only the embedded rebar as a connection point. The block fell and crushed another Limen employee working as a carpenter, killing him.
Video footage showed three loads of waste concrete blocks being lifted out of the site before the accident. In all three, the crane’s chains were attached directly to the embedded rebar and none of the blocks were in a bin or had chains wrapped around them. No one on the site appeared to raise any concern.
According to the site supervisors, they did not receive any complaints that day about how the concrete was being lifted and they didn’t see any improperly hoisted loads.
The swamper – an employee who was responsible for attaching the materials to the crane’s lifting chains - claimed that he had never been shown how to rig a load and he had just followed what he had seen. He stated that he had rigged the load directly to the rebar because “this is how we were doing it before.” He said that he had rigged about five or six loads with that method that day, including at least one occasion with the supervisor.
Employer, supervisors charged under OHSA
Limen was charged under the OHSA with failing to ensure that waste concrete blocks were hoisted by a crane using attachment points that were suitable for that purpose and failing to ensure that workers engaged in the movement of waste concrete blocks were sufficiently trained and supervised.
The site supervisor responsible for carpenters and crane operators, and the carpenter foreman were also charged individually for failing to ensure that workers moving the concrete blocks were sufficiently trained or supervised regarding the hazard related to using embedded rebar as hoisting points.
A few Limen employees testified that multiple loads of concrete had been lifted from the embedded rebar that day, although they were aware of the proper, safe methods.
Limen’s health and safety manager testified that the supervisors were required to take regular training and a safety orientation on the job site. Employees involved in lifting the concrete were required to be properly trained and provide proof of their training. The company also conducted morning safety inspections and weekly toolbox safety talks at the site, he said.
The site supervisor said that neither he nor the carpenter foreman had observed the swamper doing anything of concern and they didn’t authorize him to use the embedded rebar as the attachment point.
Company blamed employee
Limen and the individual supervisors argued that the incident was not the result of a failure to take reasonable precautions and the swamper alone was responsible for the accident.
The court noted that the OHSA charges related to “strict liability offences,” so the facts of the hazard being created had to be proven beyond reasonable doubt and the defendants had to show on a balance of probabilities that reasonable care and due diligence were taken to avoid the incident.
The court found that the evidence, including the video, clearly showed that the swamper used the embedded rebar as the attachment point to lift the concrete. It was beyond reasonable doubt that Limen failed to ensure that the load was lifted appropriately and safely, the court said.
The court also found that, although the site was owned by another company, Limen was an employer for the formwork crew involved in the accident. In addition, the site supervisor and the carpenter foreman had authority over the workers involved and were supervisors under the OHSA, said the court.
With the act of the unsafe lifting of the loads established, the company and the supervisors had to prove that “all reasonable care that a reasonable person would have taken in the circumstances” had been taken, the court said.
Employer responsible for safety
The court added that ultimate responsibility for workplace safety rests with the employer and an employer that doesn’t exercise due diligence can be liable, even if a safety risk stems from employee negligence.
Based on the swamper’s testimony and the video evidence, the fatal load of concrete being lifted in an unsafe manner was not an isolated incident, as multiple loads had been lifted the same way. In addition, with no alarm being raised by anyone in the video, it was apparent that it wasn’t unusual on the worksite, the court said.
“On the day of the incident, [the swamper] was rigging other loads using the improper, unsafe rigging method - this was under the direct watch of the supervisor who did not say anything and did not on any previous occasions say that this was not okay,” says Kourangi. “The witnesses seemed to agree that there were accepted, safe rigging methods in place, but none of those were followed.”
The court also found that there was no explanation why the swamper would “go rogue and abandon his training.” He was either not sufficiently supervised or was directed to perform his job in a hazardous manner, the court said.
“The employee who rigged the fatal load was never trained on how to raise waste concrete blocks and the rigging method he had used was consistent with how he and his supervisor were rigging loads in the past, particularly when they were in a rush,” says Kourangi. “You shouldn't cut corners when it comes to safety.”
Not an isolated incident
“The employer argued that it properly trained employees and the employee who was rigging the load acknowledged that he deviated from the training he had been provided,” adds Kourangi. “I think the reason they found that the training and/or supervision was insufficient was because this employee on previous occasions rigged the loads in this unsafe manner.”
The court determined that neither Limen nor the supervisors took all reasonable steps to prevent the swamper from “taking the fastest, easiest and most hazardous route to rigging concrete waste blocks.” As a result, they didn’t exercise due diligence to ensure that the activity was done as safely as possible, the court said in finding that Limen and the supervisors violated the OHSA. The sentences were deferred to a later hearing.
Similar to the employer, supervisors have an obligation to take every precaution reasonable in the circumstances for the safety of the worker, according to Kourangi.
“The reality is that charges are generally not brought unless there's an accident - typically, an order to rectify the issue will be made otherwise,” he says. “But when something very serious happens, the Crown will bring charges and employers and individuals to account.”
It’s also important to remember that workplace health and safety is a shared responsibility among employers, supervisors, and workers, says Kourangi.
“Workers have obligations under the OHSA and that includes the obligation to report to their employer or supervisor any known hazards and not operate any equipment or work in a manner that may endanger them or any other worker,” he says. “It should also be noted that workers have the right to refuse unsafe work and are protected against reprisal from their employers if they choose to do so.”
