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Fools will be Fools: A Painful Case Provides Teachable Moments for Employers

posted 2 years ago

After climbing a hoist chain on a dare, the unfortunate worker failed to account for multiple sharp hooks on the chain. One of these caught the crotch of his pants.

Daniel Eynon was in the midst of climbing a 14-foot-high chain hoist at his workplace – horseplay in response to a co-worker’s dare – when he got caught, quite literally, with his pants down.

The unfortunate Eynon failed to account for multiple sharp hooks on the chain. One of these caught the crotch of his pants, while another painfully pierced his scrotum. Later that evening he underwent surgery at the Brantford General Hospital in southwestern Ontario to repair the wounds on his scrotum.

Eynon testified in court that he screamed in pain and pleaded to be taken to the hospital. One would expect that anyone around him at the time would have appreciated the gravity of the situation, taken pity on him and rushed him to the nearest emergency room for treatment. But that was not, Eynon stated, what occurred.

Instead, he said, when a supervisor named Gary came into the shop 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 shop location to speak with Doug, Eynon’s direct supervisor. Doug thought someone should simply drive Eynon to his home in Simcoe. The injured Eynon refused, having spoken with his father who told him to insist on being taken to a hospital. The supervisors reluctantly agreed.

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

While Doug, Gary and other witnesses for the employer testified to a different version of events in court, the resulting $150,000 punitive damages award against the employer suggests that the jury accepted Eynon’s account of the events. The award was upheld in a recent decision by the Ontario Court of Appeal, which noted that “the supervisors’ instructions to an injured employee to falsely report that he was injured at home, without more, warranted an award of punitive damages,” and that such misconduct could be properly viewed as “highly reprehensible” and “offensive to ordinary standards of decent conduct expected of an employer.”

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

The Eynon v Simplicity Air Ltd. case presents a number of teachable moments for employers.

Eynon testified that his employer had not provided him with any safety or workplace hazardous materials training, and had failed to train him on various dangerous tasks he performed as part of his job. He also said that because he had received no training on how to operate the chain hoist, he was unaware that climbing it would be dangerous.

While Eynon obviously bears some of the blame for his own hubris, the first lesson is: Fools will be fools, and employers operating hazard-laden workplaces must not forget it. Thorough safety training and identification of hazards in the workplace is an essential obligation for employers operating in such conditions. Had Simplicity Air provided adequate training to Eynon before the accident, the accident may well have been avoided completely.

Both Gary and Doug also clearly lacked appropriate safety training, compounding their apparent lack of common sense in responding to the accident. This leads to our second lesson: Employers are liable for the conduct of their employees in the performance of their duties. Those trusted to undertake supervisory or managerial roles should thus be selected based on their trustworthiness and demonstrated good judgment, and should be thoroughly trained in safety and accident response procedures.

Had Gary and Doug been better prepared, Eynon would have been saved considerable distress and humiliation, let alone the brand damage of this column, and Simplicity Air would have avoided considerable liability.

The third lesson is this: Lying, or asking someone else to lie, about where a workplace accident took place, is a serious no-no. Not only does such misconduct contravene and constitute an offence under the Workplace Safety and Insurance Act, 1997, which can result in prosecution and penalties, the Court of Appeal has made clear that it is also enough all on its own to ground an award of punitive damages against an employer. Again, with proper training on workplace safety procedures and the cultivation of better judgment on the part of supervisory and managerial employees, all these embarrassing results could have been avoided.

Let us take heed of Simplicity Air’s bungle and proactively prioritize keeping employees safe, happy and whole — with all their body pieces intact.

By Howard Levitt and Sarah Helmer

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment 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.

THIS ARTICLE ORIGINALLY APPEARED IN THE FINANCIAL POST AND IS REPRODUCED HERE WITH PERMISSION FROM THE AUTHORS: https://financialpost.com/fp-work/fools-will-be-fools-a-painful-case-provides-teachable-moments-for-employers?video_autoplay=true

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