Fools Will Be Fools: Painful Business Makes Learning Times For Employers

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After scaling a load chain on a challenge, the hapless worker ignored the chain’s multiple sharp hooks. One of them grabbed the crotch of his pants

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By Howard Levitt and Sarah Helmer

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Daniel Eynon was climbing a 14-foot-high chain hoist at his workplace – a ruckus in response to a colleague’s challenge – when he got caught, literally, with his pants down.

The hapless Eynon ignored the chain’s multiple sharp hooks. One of them grabbed the crotch of his pants, while another painfully pierced his scrotum. Later that evening, he underwent surgery at Brantford General Hospital in southwestern Ontario to repair wounds on his scrotum.

Eynon testified in court that he cried out in pain and pleaded to be taken to hospital. You would expect anyone around him at that point to have appreciated the gravity of the situation, took pity on him, and rushed him to the nearest emergency room for treatment. But that’s not, Eynon said, what happened.

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Instead, he said, when a supervisor named Gary walked into the store and saw him there, Gary laughed at Eynon. When Eynon tried to show Gary his injury, Gary refused to look at it, refused to call an ambulance, and drove him to a second store to speak with Doug, Eynon’s direct supervisor. Doug thought someone should just drive Eynon to his house in Simcoe. The injured Eynon refused, after speaking with his father who told him to insist on being taken to hospital. Supervisors reluctantly agreed.

Then, in a mind-boggling display of poor judgment, Eynon says Doug and Gary told him to lie in the hospital saying “it happened at home.” Gary then dropped him off at the entrance, left to himself.

While Doug, Gary and other witnesses for the employer have testified to a different version of events in court, the resulting punitive damages of $ 150,000 against the employer suggest the jury agreed. the account of the events of Eynon. The sentence was upheld in a recent decision of the Ontario Court of Appeal, which noted that “supervisors’ instructions to an injured employee to falsely state that he was injured at home, without more, justified the award of punitive damages ”and that such misconduct could rightly be considered“ highly reprehensible ”and“ offending the ordinary standards of decent conduct expected of an employer ”.

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The Court of Appeal rejected the employer’s argument that the award of punitive damages should be reduced because of Eynon’s negligent misconduct in climbing the chain hoist in the first place, finding that the purpose of punitive damages is to sanction the misconduct of a defendant rather than to compensate a plaintiff for his losses.

the Eynon v Simplicity Air Ltd. case presents a number of learning moments for employers.

Lying, or asking someone to lie, about where a workplace accident took place is a no-no

Eynon testified that his employer did not give him any training on safety or hazardous materials in the workplace and that he did not train him on various hazardous tasks that he performed in the course of his job. He also stated that since he had not received any training in the use of the chain hoist, he did not know that it would be dangerous to mount it.

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While Eynon obviously bears some of the blame for his own pride, the first lesson is this: Fools will be fools, and employers who operate risky workplaces shouldn’t forget. Thorough safety training and the identification of workplace hazards is an essential requirement for employers operating under such conditions. Had Simplicity Air provided Eynon with adequate training prior to the accident, the accident could very well have been avoided altogether.

Gary and Doug also clearly lacked proper safety training, compounding their apparent lack of common sense in responding to the crash. This brings us to our second lesson: Employers are responsible for the conduct of their employees in the performance of their duties. Persons trustworthy to assume supervisory or management roles should therefore be selected on the basis of their reliability and good judgment, and should be fully trained in safety and accident response procedures.

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Had Gary and Doug been better prepared, Eynon would have been spared considerable distress and humiliation, not to mention the trademark damage to this column, and Simplicity Air would have avoided considerable liability.

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The third lesson is this: lying, or asking someone else to lie, about where a workplace accident has taken place is a serious no-no. Not only does such misconduct contravene and constitute an offense under the Workplace Safety and Insurance Act, 1997, which can lead to prosecution and sanctions, the Court of Appeal clarified that it is also sufficient in itself to justify the award of punitive damages against an employer. Again, with proper training in safe workplace procedures and a culture of better judgment on the part of supervisory and management employees, all of these embarrassing outcomes could have been avoided.

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Consider the Simplicity Air yawn and proactively prioritize employee safety, satisfaction and integrity – with all their body parts intact.

A question about labor law during COVID-19? Write to Howard at [email protected]

Howard Levitt is Senior Partner of LSCS law, labor and employment law lawyers with offices in Toronto and Hamilton. He practices labor law in eight provinces. He is the author of six books, including The Law of Dismissal in Canada. Sarah Helmer is an associate at LSCS Law.

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