“Court upholds $35 million award for workplace injury.”So read one headline in this newspaper’s Business on March 17. The article should be mandatory for owners and aspiring operators of small and medium-sized businesses – an emerging entrepreneurial group. The events that led to the court award provide an example of some of the things that can go wrong in workplaces. They also explain employers’ legal duties to employees and offer clues about how our courts treat job-related injuries when employers breach their obligations.
SME operators are often fixated on monetising their business ideas, accessing working capital, producing goods and services, developing and implementing marketing plans, and a host of other important things. Business risks are sometimes overlooked. Business persons are often ignorant of their legal duties when they employ staff. Investing in knowledge, to paraphrase Benjamin Franklin, is one way to start managing these types of risks.
Finding a firm of professional insurance advisers will also help.
Jamaica, according to the International Labour Organization, is “in the process of” introducing an Occupational Safety and Health Act. Local safety professionals say that the process has been going on for more than 20 years. The aim of the proposed law, according to a draft, is to “prevent accident and injury to health arising out of, linked with, or occurring in the course of work by protecting workers (from) harm to their safety, health, and welfare through the elimination or minimisation … of hazards, serious injury, and risks arising from plant substances and structures.” Even though the new law is still pending, employers still have a legal duty to prevent and minimise workplace risk, as the Court of Appeal recently reaffirmed.
The knowledge gap in the SME sector is real. Labour and Social Security Minister Shahine Robinson said last year – when the passing of OSHA was a “top priority” for the 2018-19 legislative year – that training, was an “extremely important” part of the sensitisation programme prior to the inspection and audit of approximately 130,000 small, medium, and large enterprises.
I read the 24-page judgment that then-Justice Sykes delivered in 2013 in the case of Curlon Orlando Lawrence versus Channus Block & Marl Quarry Limited. That decision was recently challenged by the employer, Channus. The company argued on appeal that the award was “wholly erroneous and inordinately high and included items that were neither claimed nor proved”. The grounds for appeal, in my opinion, implied four things. The employer was ignorant of its legal duties to employees. It did not have an effective strategy to prevent workplace accidents. It did not have a plan to fund the payment of the $35 million judgment. The company was trying desperately to avoid paying the award or to substantially reduce it.
Justice Sykes described the quarry accident, which took place 13 years ago, as ‘horrific.’ A labourer’s two legs were amputated above his knees. Doctors said that he was 64 per cent disabled and suffered from post-traumatic stress disorder and major depression.
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