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When safe isn't simple

A new provincial protocol makes it easier to hold negligent business owners criminally responsible for putting workers at risk, but is it enough?

Glen Murray had just picked up construction materials and was on his way to a job site in Eckville, Alta. when the snowstorm he was driving through quickly deteriorated into a blizzard.

He had travelled this route north and west of Red Deer many times, working with a farm couple to design a fully-accessible home. Now Glen was building the house and his clients were planning to spend their retirement there, looking out over the fields they had farmed for years.

Just as Glen cleared a highway intersection, an oncoming vehicle swerved, came up out of the ditch and collided with his truck. In that split second, everything changed.

Glen's injuries weren't obvious. He wasn't bleeding. He didn't have any broken bones. It was an undiagnosed head injury that triggered his slow and insidious decline over the next two decades. Glen needed intensive support, was no longer able to work or drive, and lived in constant pain. Still, he had an incredible will to live — Glen survived his physicians' warnings of imminent death 17 times during the last five years of his life. Glen died in September 2012.

"His injury was purely an accident," says Charlotte Murray, Glen's widow who teaches in the School of Health and Public Safety at SAIT.

But not every workplace death or injury is.

Charlotte Murray

The Westray Act

A few months after the crash that changed Glen's life — and the lives of his family — forever, the Westray coal mining disaster in Nova Scotia changed many more. After repeated warnings of serious safety concerns, leaking methane gas caused an explosion that killed 26 miners. The mine's managers were charged with criminal negligence, but never convicted. As a result, the "Westray Bill" (Bill C-45) was passed by Parliament in 2004, making corporations and executives criminally liable for failing to ensure safe workplaces.

In the 13 years since the bill became law, several charges have been laid — but not one of them in Alberta.

"The Westray Act hasn't lived up to its promise in terms of holding employers accountable for negligence causing injuries or death," says Gil McGowan, President of the Alberta Federation of Labour. "As a labour leader, I always wondered why the act wasn't used more often by police forces or provincial authorities."

Rights of workers in Alberta.The reason, it turns out, was a procedural gap — one that became heartbreakingly clear in 2009. On August 1 of that year, three-year-old Michelle Krsek was walking with her family in downtown Calgary when strong winds caused a fall on her. She was killed instantly; her father and brother were seriously injured.

First on the scene, the Calgary Police Service investigated the little girl's death, but were unable to lay charges — because a protocol for police forces in Alberta to collect the evidence required for a criminal prosecution under the Westray Bill did not exist.

Now it does. Alberta's new Westray Memorandum of Understanding (also called the Krsek Protocol), was signed by the provincial government and 10 police forces on April 28, 2017 - the same day the province was recognizing Canada's National Day of Mourning and the 144 Albertans who died in 2016 from workplace injuries.

"Something good is now coming from a horrible tragedy," says McGowan. "The missing piece of the puzzle is in place, and police forces can now conduct investigations that will provide evidence that could be used under the Westray Bill to hold employers criminally responsible."

It's not just about punishing owners or managers after the fact for putting their workers at risk, explains McGowan. "It's about sending a message that workplace health and safety needs to be given the high priority that it deserves — before accidents happen."

Mitigating risks

But is the threat of criminal prosecution enough to motivate those employers and managers to be more vigilant about workplace safety?

"It's good to see police and government working together," says Ryan Davis, Manager of Course Development with the Alberta Construction Safety Association. "But while the memorandum of understanding may strengthen the ability for police to investigate following a serious incident, my personal opinion is that it doesn't act as much of a deterrent. It's a good gesture, but because the standard of proof in a criminal prosecution is so high — you must prove wanton disregard for safety beyond a reasonable doubt — it makes a criminal conviction unlikely. And I think owners know that."

Both McGowan and Davis agree that giving workplace safety the priority it needs will take a comprehensive approach, and a larger occupational health and safety tool kit that includes enforcement, investigation, protection, training and education.

For Davis, the focus must lie in early assessment and control of hazards, particularly for the construction industry. Not only is construction the largest employer group tracked by the province, it's also among the most dangerous sectors to work in.

"There are inherent dangers in construction — working at heights, erecting structural steel, using cranes and equipment, welding and working outdoors," he says.

Mitigating those risks would be most effective, Davis thinks, if it happened early.

"In a perfect world, safety practitioners and safety professionals would be more involved at the earliest stages of projects where they can focus on prevention rather than reacting to near misses," he says. "Often, when smaller companies decide to pursue a construction project they get contractors involved and meet to discuss quality control, scheduling and pricing — but there aren't usually a whole lot of safety discussions at that point."

Moving safety to the front end of projects, Davis adds, would allow for workflow design to happen through a safety lens, and before workers ever step onto a worksite.

"In other dangerous sectors like law enforcement and firefighting, there are rigorous training academies, processes and standards, but that type of training does not happen in construction," he explains. "More often, safety training happens on the job. There are situations where workers who have no experience whatsoever show up for an orientation, and a few hours later have tools in their hands. For new or less experienced workers, that means they are placed in an inherently dangerous environment without the preliminary training that new workers in other sectors would have."

Awareness and culture

Kevin Barrett, SAIT's Manager of Health, Safety and Environment

For Kevin Barrett, SAIT's Manager of Health, Safety and Environment, safety in an organization comes down to two things: awareness and culture. Many employers, including SAIT, help create that awareness by developing the programs and committees required to gain and maintain Certificate of Recognition (COR) safety certification. But, he adds, programs alone don't establish a safety culture - people do.

"Safety culture isn't top-down or bottom-up," Barrett explains. "It's both. When owners, senior managers and executives honestly demonstrate that safety is important to them - that they truly care about it and want their employees to go home safe at night - then it's also viewed as important by employees." It's a dynamic Scott MacPherson, Dean of the School of Construction, sees first-hand in the school's labs, where instructors aren't alone in their role as safety advocates.

"Many of our students come to SAIT having already worked in the field, and today those students are coming to us much more familiar with safety practices than they were 10 years ago," he says. "Not only are faculty holding students accountable when it comes to a worker's rights and responsibilities around safety, we're also seeing students holding faculty accountable. It's a shared responsibility now, and that definitely wasn't the case a decade ago."

Top of the agenda

Over in the lab where Charlotte teaches her infection prevention control class, safety is also at the top of the agenda.

"I don't just teach infection control — I lived it through Glen's injuries and subsequent hospitalizations," she says. "So, I share our stories, using those experiences to illustrate the things I teach."

And although she confesses to being wary of becoming a professional widow, Charlotte continues to share Glen's story widely. This year, she spoke at the 2017 National Day of Mourning ceremony in SAIT's Aldred Centre on behalf of families who have lost loved ones to workplace injuries.

"The circumstances of each unwelcome death have a story," she said that day. "Every family has a special story about their special person."

Because Glen was ill for so long, many people only ever knew him as a sick person. "But he was actually the king of fun," Charlotte says with a smile.

Glen was also a husband, a father, a grandfather and a friend. He was a master bricklayer, a custom home designer and a contractor. And he was proud of the work he did.

A few days before she gave that speech in late April, Charlotte called Glen's final clients — the couple in Eckville who had hired him to build their retirement home. Andrew, the owner, is 97 years old now and in a wheelchair. His wife has since passed away, but with the help of a live-in caregiver he spends his days at home in the house Glen designed. Every day, Andrew looks out over the fields, just like he and his wife had imagined doing so many years ago. "I think Glen would have liked knowing that," says Charlotte.