In brief

  • A rising trend in multiple duty holder prosecutions reinforces the need for businesses to ensure that they have effective incident prevention mechanisms.
  • If an incident does occur, businesses need to be ready to immediately manage the legal and reputational risks of the incident.
  • This article outlines 10 steps to be followed in the event of an incident occurring at your workplace.

Multiple duty holder prosecutions

Despite a continued focus on preventing workplace injuries and improving workplace safety, incidents continue to occur at Australian workplaces. Recent prosecutions under occupational health and safety legislation have seen the imposition of significant penalties not only on employers but also directors, officers, managers and employees. Even where the company itself has avoided prosecution, the negative impact on an organisation and its workforce can be significant if a manager or an employee is charged with criminal offences arising from a workplace incident.

This rising trend in prosecutions of multiple duty holders highlights the importance for businesses to take steps that not only focus on incident prevention and legislative compliance, but that also assist in managing the legal and reputational risks of the organisation, its directors and its employees when a workplace incident occurs.

Below we provide some steps that are available to employers which can assist them in managing their various corporate risks in the event of a workplace incident.

10 steps for incident response

  1. Ensure the safety of everyone at or near the incident site before any other steps are taken and implement a formal emergency response system.
  2. Once safety is ensured, preserve the incident site until the inspector has arrived. There are substantial penalties for disturbing an incident site other than to ensure safety.
  3. Review notification obligations in the OHS legislation.
    • There are specific provisions as to what constitutes a ‘notifiable incident’ in the legislation. These provisions should be reviewed carefully with, if necessary, reference to the regulator’s website to see whether the incident is captured by these provisions. If in doubt seek legal advice (the provisions are deceptively technical and the guidelines are not always helpful).
    • If the incident is notifiable, discuss the content of the notification form with an OHS lawyer. Offences under this legislation are criminal and care should be taken with regard to legal exposure.
  4. Ensure that managers and employees understand their legal obligations and their rights in relation to assisting inspectors during their investigations.
    • Relevant issues include what constitutes hindering or obstructing an inspector, when staff can invoke the privilege against self incrimination, whether they are aware of their rights with regards to making a statement, and what is a ‘reasonable excuse’.
  5. Ensure that those responsible for assisting the inspector on the company’s behalf are aware of the company’s legal rights and obligations, the powers of the inspector and of the potential for director and employee liability.
    • Relevant issues include when legal professional privilege applies, and common traps in the interpretation of the statutory obligations (eg section 100 requires a person to ‘produce’ documents. ‘Produce’ means providing documents that are already in existence – not creating new ones).
  6. Implement a document management strategy. This would include:
    • requesting that the inspector puts any request for documents in writing, and keeping copies of all documents that are then provided,
    • limiting the creation of documents in relation to the incident (including emails) and nominating a person to ensure that this is monitored and controlled, and
    • ensuring that speculation as to the cause of the incident is avoided.

Note: A post-incident document management strategy will be assisted by an effective proactive document management strategy (previously discussed in the article Documenting safety procedures to minimise your risk)1

  1. Consider a review of any statutory notices issued following the incident.
    • Failure to comply with improvement and prohibition notices is an offence under OHS legislation. However, compliance with them may provide the regulator with evidence of a breach (eg deficiencies in the pre-incident system of work) and may have significant and broad ramifications on the organisation’s operations generally. It is therefore recommended that any notices that are issued are reviewed by an OHS lawyer to determine if they have been validly issued and have legal effect.
  2. Review OHS improvements or remedial measures.
    • Safety must remain paramount and this may mean implementing remedial measures (such as the issuing of hazard alerts, the conduct of refresher training and the review of OHS systems). However, it is possible to implement these is such a way as to minimise legal exposure. It is recommended that safety managers and legal advisors consult during this process.
  3. Consider the company’s position on enquiries made by the media in light of the potential liability faced by various duty holders.
    • Ideally no comments would be made. However where the organisation believes it is commercially necessary to release a comment, it would be prudent to have it reviewed by an OHS lawyer, and to ensure that all enquires are directed to a nominated spokesperson.
  4. Keep comprehensive documentation of steps taken in assisting the injured person after the incident (eg provision of counselling, additional payments outside salary, arrangement and payment of child care or cleaning services, etc).
    • In the event of a prosecution, this information can be presented to the court as evidence of the company’s contrition for its breach and may assist in mitigating the penalty. Details such as these can be difficult to recall when charges have been filed and a plea hearing has been listed (which is normally years after the incident occurred) by which time the corporate memory has often been lost.