Safety First and Last: Distracted driving – workplace edition

However, we have now seen this type of distraction spill into our workplaces and, in the first case of its kind in Canada, two forklift operators were prosecuted for using their cellphones while still in care and control of their forklifts at work.

The event in question occurred in Ontario at a large bottling corporation where the workers were employed in the production and distribution centre. The employer had visible signs posted and wording on monitors indicating that cellphones were prohibited. You may think that the workers were operating their forklifts while using their cellphones – on the contrary, the equipment was stationary. A co-worker witnessed the individuals allegedly sitting on their equipment, cellphones in hand, looking at them openly. The co-worker discussed his concerns and he felt that they were not taken seriously. The concerns were escalated to the point of a work refusal, at which point the Ministry of Labour got involved.

Based on the results of the investigation the inspector charged the workers for contravening section 28(2)(b) of the Occupational Health and Safety Act. This section states that no worker shall “use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker.”

This is where it gets interesting, as the evidence that was presented at trial confirmed that although they had cellphones in hand, they weren’t operating the forklift at the time the co-worker raised the concern. So, clearly, they were in contravention of company policy but not the law, right? What followed was an extensive review of what it meant to “operate” the forklift.  Similarly, the Highway Traffic Act was reviewed comparing provisions made in that Act to the Occupational Health and Safety Act to determine what it means to “operate.” With much consideration and review, the justice of the peace held that there was no requirement for a worker to be on the forklift and driving it to constitute a contravention of the Act.

The court stated that using or operating any equipment, machine, device or thing includes using a cellphone or causing a cellphone to be used while the operator is situated off the forklift and standing on the warehouse floor while still maintaining care and control of the forklift, especially when the forklift had not been in a designated spot in the plant where forklifts could be left unattended safely. The court went on to further state that the individual’s inattention to their surroundings because of the cellphone use may endanger themselves, other forklift operators or pedestrians in the area, as they would not have been aware of potential hazards suddenly arising. The Act in Ontario is strict liability legislation and affords the accused the defence of due diligence. Ultimately the court rejected the evidence brought forward by the defendants and the two forklift operators were convicted.

This case clearly demonstrates the seriousness with which courts and regulators are viewing cellphone use in our workplaces. This case also demonstrates that workers have a right to refuse when cellphone use endangers a worker. The employer must ensure that when there are violations, they are dealt with and documented accordingly. Failure to document in these events may have the potential to lead to increased liability for the employer.

Jeff Thorne is manager of training at Occupational Safety Group.