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What is a ‘Supervisor’ in the Eyes of the OHSA?

By June 28, 2017 No Comments

Section 1 of the OHSA defines a Supervisor:

“supervisor” means a person who has charge of a workplace or authority of a worker”

To most, a “supervisor” would be someone who is part of the management team in the organization, but that is not what the courts think…

The definition of a Supervisor has been expanded to possibly include workers who have some additional duties which give them either charge of a workplace or some authority over other workers. This can make them a “supervisor” for the purposes of the OHSA. The courts have also decided that even if an individual does not believe they are a supervisor, if the facts show they had sufficient charge of a workplace or sufficient authority over a worker, they can still be a supervisor. Also not relevant is the job title. Even if the employer appoints someone as a supervisor and gives them the job title as a supervisor, even if the employer does not give them sufficient duties to have charge of a workplace or authority over a worker, the courts can determine that the individual is not a supervisor for the purposes of the OHSA.

There are two main rulings that have helped to define a supervisor for OHSA purposes and have been used as precedent in later cases- first is R.v. Walters, second is R.v. Adomako

 In the Walters case the appeals judge found:

“A supervisor must be someone who has hands-on authority. The test is objective, based on the individual’s actual powers and responsibilities. Whether or not Mr. Walters considered himself to be a supervisor is not relevant.”

The judge further stated, “There was certainly ample evidence of Mr. Walters’ authority. He was the lead hand in charge of his crew. He assigned work and answered questions. He had influence over who was assigned to him and was expected to address safety issues in the workplace. I disagree with Mr. Walters’ argument that he had no enforcement powers and therefore was not a supervisor. First, the definition provided a supervisor has charge of a workplace or authority over a worker the test is disjunctive. Even if Mr. Walters had no authority, there was ample evidence to support the finding that he had charge of the workplace.”

The judge also had this to say, “Moreover, coming to a conclusion that a lead hand with the job characteristics enjoyed by Mr. Walters is a supervisor within the meaning of the OHSA, furthers the purpose of the Act in the sense that a broad interpretation of the meaning of “supervisor” increases responsibility over worker safety, thereby focusing more attention and resources on such safety.”

In the Adomako case the opposite happened:

The owner/president of the company had appointed a supervisor, given him the job title of plant supervisor but provided him with very little in the way of duties what would give him charge of the workplace or authority over the workers. In this case, it was the president who was prosecuted as a supervisor when a worker was killed. The court decided that the president was the real supervisor and that despite the job title, the plant supervisor was a supervisor in name only and was not a supervisor for the purposes of the OHSA.

A similar decision was made in the case of R. v. Jetters Roofing and Wall Cladding Inc.

The site foreman had little authority in the workplace and with the workforce. The court found the company’s vice-president to be the supervisor for purposes of the OHSA.

In another case, R. v. Lockyer,

a working foreman on a construction site was convicted of failing in his duties as a supervisor under the OHSA. In convicting Mr. Lockyer, the judge stated: “I find that it is not relevant that the defendant does not consider himself a “supervisor”, nor is it relevant whether his title is “supervisor”.

In sentencing Mr. Lockyer, the judge had this to say to him:

“I’ve given, as you can see, a lot of time and analysis to try not only to render a judgment, but to give you insights, perhaps a little bit beyond those that you might have had before with respect to how the law works and what your legal responsibilities are by taking on the responsibilities that you did, whether it’s called a working foreman or supervising or whatever, titles are not important. As they say, a rose by any other name is still a rose.”

These decisions have created legal liabilities for workers that they and their employers may not be aware of- unless they called us.  

It is also worth noting that other rulings clarified that whether an individual is a supervisor is not dependent on the employer providing them with training to be a competent supervisor.

An employer is required in the OHSA that when appointing a supervisor they appoint a competent person. Section 25(2)(c) says that “an employer shall,…”  “when appointing a supervisor, appoint a competent person”. Remember, in order to be competent (in part) you need knowledge, training and experience. The courts have ruled that even if a worker is not trained as a supervisor and do not meet the “competent” definition you can still be considered a supervisor. The courts stated that an employer’s failure to carry out their duties and provide supervisor training will not be a factor in deciding who is a supervisor. The courts have made it clear they consider the duties of employers, supervisors and workers separate and distinct, operating independently but that they can be happening at the same time.

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