Court decision in The Brick employee death ‘cautionary story’

'There were certain standalone obligations that weren't followed, which then in turn had a cascading effect on the entire situation': employment lawyer

Court decision in The Brick employee death ‘cautionary story’

A failure to communicate and enforce safety and lighting policies at a Brick Warehouse in Nova Scotia led to a chain of events that resulted in the death of an employee; the case is a warning to employers that even in seemingly safe environments such as retail, negligence around enforcing safety policies can lead to tragic consequences.

In the summer of 2020, a delivery driver for The Brick was found injured on the floor of a washroom in his employer’s store. Due to “Covid-related changes in their business hours” wrote Novia Scotia Provincial Court Justice Elizabeth Buckle in her decision, the automated lighting schedule in The Brick’s retail outlet and warehouse were changed.

“Warehouse employees came in earlier than retail and office employees so the lights in the warehouse were set to come on earlier,” Buckle continued. “However, the warehouse employees and delivery drivers used a washroom in the office area of the building. Prior to making the change to the lighting schedule, no one considered that the warehouse and delivery drivers used that washroom and no one checked to see if the lighting change would affect the washroom. It did.” 

Lights in bathroom off for two months before employee accident

For approximately two months before the death of the employee, the bathroom in the retail outlet was in darkness for an hour every day, the court said; “Employees used the washroom during that time and typically used their phones as a flashlight. There is no evidence that the warehouse manager or any employee reported the situation to a manager.”

The court went on to note that although there was a manual switch on an electrical box in the warehouse that could have turned on the washroom lights, that switch was 150 to 200 feet from the washroom, there was no evidence that employees were told it was there or that they were allowed to use it, and it was not labeled.

The driver was found semi-conscious and was taken to hospital, where he died two days later from his injuries.

At the trial, held in November 2023, the trial judge convicted the furniture seller of three offences under the Nova Scotia Occupational Health and Safety Act (OHSA): two counts of failure to ensure policy implementation and one count of failing to ensure adequate lighting in a toilet facility.

The Brick OHSA policies not implemented

“It's a cautionary story of how some seemingly inconsequential cost savings could then lead to a very catastrophic accident,” says Sean Kelly, partner with Stewart McKelvey in Halifax, “in an environment too – and I think this is very important – in a retail environment that is characteristically not one where you would see a lot of serious accidents.”

Not only did The Brick’s “superficial” implementation of the lighting policies create the potential for serious injury or death, the court found, but the employer also failed to contact the employee to check on his status in the hospital until a supervisor texted him 30 hours after the accident.

Additionally, the employee’s family did not find out about the accident until the hospital informed them the next day, the court noted, adding that if they had been informed immediately, the family may have had time to make it to the hospital in time to see him before he passed away.

Finally, The Brick did not report the incident to the Department of Labour, as is required under the OHSA. The Department in fact learned of the accident from the employee’s father.

"The judge was pretty critical of the employer not taking steps to ensure that the policies were followed, and similarly, critical of the company not providing proper training and education sessions on those policies or following up to make sure that anybody knew about them," says Kelly.

Training around occupational health and safety policy implementation

Buckle wrote in her decision that although the direct cause of the employee’s death was not proven, The Brick’s failure to train employees about lighting policies contributed to the lack of adequate lighting in the washroom, which in turn created the potential for serious injury or death

“Occupational health and safety (OHS) policies set standards, inform employees and managers of those standards, and hold management accountable to those standards,” she wrote.

The Court emphasized that simply having a policy does not accomplish the goals of informing and holding employees and managers accountable for safety standards: “Having a policy does not accomplish these goals and does not advance worker safety if the policy is not implemented, meaning the employer does not effectively inform and educate employees and managers of what it says and how to follow it, and does not take steps to ensure it is being followed.” 

The problem with the lights had been occurring for approximately two months prior to the accident, the court explained; this demonstrates “the risk that employers will superficially address safety issues by introducing policies but will not inform, police, and enforce the standards they contain,” Buckle wrote. Further, the court stated:

The problem with the lights was not prevented or caught. The managers who made the decision to change the lighting schedule did do a workplace hazard assessment and safety checks of the premises. However, these assessments and safety checks were apparently not conducted during the hour each day when it was a problem.

The Brick had an adequate lighting policy and an adequate accident investigation policy.  However, they did not implement those policies. Both were in the OHS binder and employees knew there were policies in an OHS binder. However, some employees who testified did not know the location of the binder and none had a proper understanding of either policy. The Brick did not take steps to ensure that the policies were followed. They did not provide proper training and education on the policies and failed to conduct checks to ensure understanding and compliance.

Orientation modules that all employees took only vaguely referred to lighting. They did alert employees and managers that they have certain obligations for accident reporting and investigation. However, they provide little detail about how to do an accident investigation. There is no evidence that any of the monthly modules or safety talks dealt with lighting or accident reporting or investigation.”

Creating a culture of safety

The decision highlights the importance of creating a culture of safety that includes all levels of an organization and flows from the top down, wherein employees are encouraged to speak up about safety hazards, “where small potential safety pitfalls are not something that is overlooked or that are just left – where complacency isn't able to prevail,” says Kelly.

This adherence to “robust” training is even necessary in typically non-hazardous environments, as this case points out.

“You don't see a lot of retail environments where there are such serious accidents, perhaps in a warehouse or something where there's forklifts, but this could have happened in any workplace,” he says.  

“So it's a pretty significant reminder of the importance of adhering to internal policies and making sure that there's consistency in education and consistency in checking to ensure understanding and compliance with those policies.”

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