By Partner Carlie Holt and Senior Associate Emma Gruschka, Sparke Helmore Lawyers
Monday, 11 September, 2017
Effective incident management starts before an incident in the workplace occurs. Preventing an incident begins with good risk management, by identifying what can injure people in a workplace, implementing safe work practices and equipping people with the information and resources they need to eliminate or control risks.
Managing incidents is not always easy or straightforward as every incident is different. However, there are some actions you can take that will assist you with responding to an incident promptly and effectively, by understanding your legal obligations, having an incident procedure and investigative model in place, and seeking legal advice when necessary.
Planning and procedure
The immediate hours following an incident are critical and will rely heavily on a sound incident response procedure. Workplaces that do not currently have such a procedure in place should consider implementing one that addresses:
- exactly what needs to happen following an incident — this should align to legislative requirements to render immediate medical assistance and not disturb the scene of an incident in certain circumstances;
- internal and external notification requirements (ie, who to notify, when this must be done and by whom);
- when to call emergency services and who is responsible for doing so;
- who will arrange counselling (if required);
- who will liaise with regulators;
- when is an investigation required; and
- who will investigate the matter.
Any procedure your company implements must be communicated to, and easily located by, all workers. It must also be supported by education and training for workers so they understand the process and can implement it in critical situations. Personnel should also have access to assistance and advice as early as possible from when the procedure is introduced.
When an incident has occurred, subsequent events can happen in quick succession and it’s easy to lose track of what’s happening. Now is the time to get organised, appoint a single contact person for the regulator and keep track of what the regulator requests.
It is also vital to have an investigative model in place to take a structured approach to investigations and to streamline the process. There are a number of models that can be used, and some organisations have devised their own to tailor it to their business. In establishing a model, there are some key elements that should be considered, to undertake an effective investigation:
- Have a plan — Investigations should be systematic and thorough. To achieve this, establish a plan that deals with the investigation scope, documents that need to be gathered, data to be reviewed and witnesses to be interviewed. Make a list and communicate it to the relevant people on the investigation team, including what their specific role will be. Anyone who is not on the team should not be undertaking their own investigation as it could cause confusion and affect the outcome of the main investigation.
- Enlist an experienced investigator — Some organisations have skilled and experienced investigators already on their staff, while others do not. Organisations should identify the skills gap and when a notifiable incident occurs, make sure they have an appropriately qualified and experienced investigator on hand to undertake the investigation.
- Timeliness is important — The quality and reliability of witness recollection can deteriorate over time, so it is important to speak with witnesses as soon as possible after the event. This, of course, needs to be balanced with the health and welfare of witnesses, and whether they are fit to participate in an investigation. Some incidents are complex and take time to investigate. The important thing is to avoid unnecessary delay and where possible, set a timeframe that can be adhered to.
- Stick to the facts — Getting the facts right is key to an investigation. This means gathering the facts (in particular, what, when and where) while avoiding or separating speculation and opinion. Talk to witnesses and ask them what they saw, heard and did. Gather and examine documents as well as recordings, data and any other resource that may have recorded the incident or events relevant to the incident.
- Know what you don’t know — Sometimes an investigation won’t give you all the answers and you will need advice or insight from an expert to properly understand the incident and causal factors. How and when to engage an expert should be carefully considered and may benefit from legal advice — ask for a CV and fee estimates from experts before formally engaging them.
- Have a photo register — If you take photos, keep a register of the exact date and time they are taken. If the photos are required days, months or years later, you’ll be glad you did!
- Keep a copy of documents — If you provide documents to the regulator, either voluntarily or in response to notices, it’s important to check the compliance date and keep a copy of everything you produce.
Clarifying privileged information
Many people mistakenly believe that, upon speaking to a lawyer, every document in their possession becomes subject to legal professional privilege. Items and documentation in existence before an incident occurs will generally not be subject to legal professional privilege and will therefore have to be produced to a regulator if requested.
As an example, if you sought an expert report about an item of plant six months before an incident without the involvement of a lawyer, the report will not be subject to privilege. The same applies for any safe work method statement, risk assessment, closed-circuit television footage or anything else that was created before a lawyer was contacted for the dominant purpose of obtaining legal advice.
Incidents often expose areas for improvement and they should not be ignored. Indeed, one of the objectives of the model Work Health and Safety Act 2011 (Cth) is to “provide a framework for continuous improvement and progressively higher standard of work health and safety”.
Part of effective incident response is learning what happened and why, then taking measures to ensure there isn’t a recurrence. For officers, this means receiving all the information about the incident, so they know what happened and can take steps to ensure the same incident doesn’t happen again.
Image credit: ©stock.adobe.com/au/Coloures-Pic
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