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SIA Tas Safety Symposium 2017: Workplace incident response options, alternatives and insights
1. 18 May 2017
Marissa Dreher
Dreher Legal 0458 337 013
marissa.dreher@dreherlegal.com.au
WORKPLACE INCIDENT RESPONSE:
OPTIONS, ALTERNATIVES AND INSIGHTS
2. 2 2
Immediate
response
Cease
operations?
Preserve the
site?
Notify?
Safety alerts?
Legal
representation
Separate
representation?
(e.g.:
Management,
related entities?)
Internal
investigation
Who should be
on the
investigation
team?
• What is the
investigation
scope?
• How can we
control the
information that
is generated?
• How can we
control the
release of
information
gathered?
Dealing with
the regulator
To what
extent should
we
cooperate?
What is
required for
on-going
compliance?
Statutory
notices:
comply or
appeal?
Dealing with
3rd parties
Public
statements –
what should
we say?
Insurances –
Obligations?
Common
interest
privilege?
Flexibility?
Contractors –
how is
information
shared?
Dealing with
the workforce
What
information
do workers
need?
How can we
deliver it?
CONTEXT: LEGAL AND PRACTICAL
4. 4 4
Background: The regulatory investigation process
Part 1: The first 24 hours
Part 2: Internal investigations
Part 3: Other considerations
OVERVIEW OF TODAY’S SESSION
5. 5 5
BACKGROUND: THE REGULATORY INVESTIGATION PROCESS
Evidence
gathering
Documents
requested
Statements
sought
Directions &
notices
issued
Brief of
evidence
prepared
Internal
legal
referral Prosecute the
company and/or
individuals?
Other?
6. 6 6
In this part we will discuss 6 steps:
1. Notification
2. Document management
3. Preliminary corrective actions & safety alerts
4. Dealing with the regulator
5. Responding to statutory notices
6. Messages to your workforce
PART 1: THE FIRST 24 HOURS
7. 7 7
Who?
PCBU
• “Must ensure"
• Arising from business or
undertaking
Nominate a person
responsible for:
• Notifying the regulator
• Liaising with inspectors
& other parties on site
What?
Immediately “after
becoming aware”
Borderline matters?
Offence for failure to
notify
Relationship with
regulator
How?
Written?
• Brief content
• Refer only to facts
Don’t speculate &
avoid admissions
Legal review prior to
submission
STEP 1: NOTIFICATION
8. 8 8
Creation of documents following incident
• Create documents under legal professional privilege (LPP) where possible
• Consider verbal communications (e.g. to workforce) where not LPP
• Eliminate unnecessary communications (e.g. emails) where possible
Records
• Keep comprehensive documentation of steps taken in assisting the injured person
and others after the incident (seek legal advice on how to document this)
May be required during court proceedings
Difficult to recall due to court delays
E.g. counseling, payments, child care, cleaning services, etc.
STEP 2: DOCUMENT MANAGEMENT
9. 9 9
Provision of documents to regulator
• What does “produce” mean?
• Ask for any regulator requests for documents to be put in writing
• Provide copies rather than originals
• Keep copies of:
all documents provided to regulator
documents NOT provided to regulator and REASONS WHY they were not
provided (seek legal advice on how to document this)
STEP 2: DOCUMENT MANAGEMENT (cont.)
10. 1010
SITE
NOTICE: “It is
no longer
acceptable
practice .…”
Was it
“acceptable
practice”?
What was
the real
message?
What was
the result
of this
message?
Safety must take priority over legal, but consider:
• Change is evidence of what could have been
done (but wasn't) – goes to reasonable
practicability
• Necessary actions may not be clear until
investigation complete
Think carefully about the intended message of alerts
– what it is that you are ultimately trying to convey:
Focus on advising about the actual hazard and
measures in place to manage it
Avoid statements that go beyond the intended
purpose
Report known facts
Include words (if you can) such as “continue to
enforce”, “enhancement of”, “refresher
training”
STEP 3: PRELIMINARY CORRECTIVE ACTIONS & SAFETY ALERTS
11. 1111
Do you have protocols?
Appoint a management representative to
liaise separate from the investigation team
Arrange for employees to be briefed about
their rights and obligations prior to an
inspector's attendance on site
Develop inspector’s right of entry protocols
and powers
Ensure inspector is inducted and has
necessary PPE, etc.
Accompany inspectors during investigation
This is a criminal investigation and nothing
is ‘off the record’
Inspectors have broad powers and it is an
offence to refuse to comply without
reasonable excuse
STEP 4: DEALING WITH THE REGULATOR
answers
to
questions
production
of documents
require a
person to
assist
seize
evidence
measure
record, &
conduct
tests
inspect,
examine
& make
inquiries
enter
workplace
without
notice
investigate
&
prosecute
Inspectors’
Powers
12. 1212
Do:
Assist the inspector
Ask the inspector for time to obtain legal
advice or consider any questions raised by
the inspector if required
Clarify whether acting as an individual or
on behalf of business
Limit answers to the facts
Rely on legal professional privilege
Consider privilege against self
incrimination (depends on jurisdiction)
Remember inspector is not decision maker
(“we’re not looking at you…”)
Don’t:
Do not provide answers or documents
voluntarily
Don’t feel compelled to give a statement
Don’t ‘fill the silence’ in an interview
Avoid giving conclusions, opinions, or
speculation - may be interpreted as
admissions of legal liability or fault
Do not feel intimidated by the process –
you always have the right to seek legal
advice, at any stage, if you are unsure
STEP 4 (cont.) QUESTIONS: TIPS
13. 1313
Practical / Legal / Strategic
Changes may be evidence of what was reasonable practicable so confirm it is
necessary – the long term effects
• Confirm the time frames for appeal
• Is it valid?
• Work with inspector on compliance date prior to issuing (i.e. can it be met: lead
times, training for large workforce)
Don’t assume inspector can extend the compliance date
o Is it deemed to be varied (e.g. Victoria)?
o Has it already expired?
• Consider impact on business (e.g. safety performance history on future contracts,
significant costs to implement recommended changes)
• Benefits of appeal versus costs to the business
STEP 5: IMPROVEMENT AND PROHIBITION NOTICES
14. 1414
What information do your workers need?
• Substance
• Reassurance (“health” includes
psychological health)
How is the information provided?
• Avoid creating unnecessary
documentation
• Can it be delivered verbally?
Provides forum for open discussion
Who delivers it?
• Nominated person
• Access to management for questions
STEP 6: MESSAGES TO YOUR WORKFORCE
15. 1515
In this part we will discuss:
• Why investigate?
• Disclosure of documents & legal professional privilege
• Waiver of legal professional privilege
PART 2: INTERNAL INVESTIGATIONS
16. 1616
Determine the purpose first:
• Ensure health and safety of
employees, contractors and others
• Identify corrective actions
• Determine liability under OHSA or
other legislation
• Comply with legal duty to investigate
• Comply with internal
policies/procedures
• Comply with contractual obligation to
investigate
WHY INVESTIGATE?
17. 1717
DISCLOSURE OF DOCUMENTS
Example of ordinary document creation
Incident
occurs
The decision?
To document the
cause/s
& remedial steps
Report generated:
Subject to
seizure/disclosure
18. 1818
THE PROTECTION OF LEGAL PROFESSIONAL PRIVILEGE
Example: Document creation, attracting legal privilege
The decision?
To engage lawyers
to seek advice on
legal liabilities
Summary: Subject
to a claim for legal
professional
privilege*
Incident
occurs
Legal advice
(LPP)*
Public report:
sets out
remedial
measures
(if
desired/required)
*If for a privileged purpose, and assuming no waiver has occurred
19. 1919
Communications
• E.g.: investigation reports, emails, witness statements, photos, sketches & diagrams,
notes, calculations & analyses
Confidential in nature
• Must be maintained (see waiver of privilege)
Between lawyer and client, or their agents
• Sometimes with 3rd parties but exercise caution
Made for the DOMINANT purpose of
• Giving or receiving legal advice; or
• For use in litigation (on foot or reasonably contemplated)
LEGAL PROFESSIONAL PRIVILEGE: ELEMENTS
20. 2020
• May occur expressly or inadvertently
• Test is whether party entitled to the
privilege has acted inconsistently with
the confidentiality of the privileged
information
• Common waivers:
Privileged communications
disclosed by mistake
Conclusions of legal advice
revealed even though reasoning is
not (media statements)
• Remember drafts of documents
WAIVER OF PRIVILEGE
21. 2121
In this part, we will discuss:
• Dealing with the media
• Future potential exposure
• Steps you can take now
PART 3: OTHER CONSIDERATIONS
22. 2222
• Dependent on profile of incident & entity
• Determine whether there is a need to
communicate (and control) the key
public message.
• If required:
Keep to known facts
Focus on the positive steps (but keep
in mind steps that may have been
reasonably practicable)
Avoid admissions
Don’t speculate
Have content reviewed by legal
advisor (LPP may be available but
seek advice on process prior to
drafting)
MEDIA RELEASES
23. 2323
Note: Investigations can
take months to commence
Charges laid outside 2-year limitation period
“First comes to the notice of the regulator”
Within 1 year after coronial (and appears offence committed)
Within 6 months after EU breached
Fresh evidence (Category 1)
Coronial Inquests
Charges can be issued within one year after a coronial
Can raise further issues or create paths of inquiry, due to its inquisitorial
nature and flexible rules of evidence
Public requests
“Persons” can request regulator to bring a prosecution in relation to
the incident
POTENTIAL FUTURE LEGAL EXPOSURE
24. 2424
Maintain your records
Cultivate/maintain good
relationship with regulator now
Develop/review your incident
response procedure
Review OHS clauses in
contracts
Ensure regular staff training in
• OHS law – obligations &
rights
• Your procedures
STEPS YOU CAN TAKE NOW
