Episode 8: How to Conduct Effective Workplace Investigations

 

In this podcast, we are joined by Piet Jarman, from Jarman Legal, and Amanda Tulloch, EBM Insurance & Risk's National Manager - Injury Management, as we discuss how to conduct effective workplace investigations.

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00:00 Disclaimer

In this podcast, we have provided general advice only and not personal advice in giving this advice. We have not considered your personal circumstances.

 

00:12 Sandy

Welcome to EBM Insights. In this podcast, we're very fortunate to be joined once again by Piet Jarman, from Jarman Legal. Piet appeared on our series last year regarding the WA WH&S law update and last month, he also presented a webinar for our clients on How to conduct effective workplace investigations.

 

00:32 Sandy

Today, Piet will take us through some of the key points from that webinar. We're also joined by Amanda Tulloch, EBM insurance and Risks National Manager for Injury Management. Welcome back to the pod Piet and Amanda.

 

00:44 Piet

Thank you very much Sandy. It's lovely to be here.

 

00:49 Amanda

Thanks Sandy as well. I really appreciate the opportunity to join the podcast.

 

00:52 Sandy

We’re very glad to have you here.

Piet, you spoke to us last year on the proposed updates to WA Work Health and Safety legislation. Has a time frame being advised for when these updates will be implemented?

 

01:05 Piet

I'm afraid not Sandy. I did warn you and your listeners last year that it was a bit of an indeterminate time period.

They have to drafted the regulations to support the amendments, and I checked this morning and I can find no update as to when the balance of the amendments might be implemented.

I would expect, however, I would hope that they will be implemented before the end of the year, but that's really a matter for the regulators.

And we'll just have to wait and see.

 

01:37 Sandy

Thanks for that update Piet.

 

01:40 Amanda

During the recent webinar, he explained that if a workplace incident should occur, the company involved needs to investigate as soon as possible.

Can you take us through why conducting an investigation so quickly is critical?

 

01:52 Piet

Yes, and I do believe it is very critical to conduct an investigation as quickly as possible firstly.

You can identify the relevant witnesses far more easily if they're there. If it's only within a matter of hours or days, and when you're conducting the investigation so you can identify who you need to talk to, to gain some understanding of the events.

Then secondly, that evidence is generally more available at that that time or shortly after the time than it is when you're trying to chase the evidence down six months later.

Thirdly, it's going to be more reliable. People will have a better recollection of events and a better understanding of events at the time, then they will sometime later when there's been a lot of other information and material, that's happened which can discolour and affect people recollections so fresh recollection, identifying who is available, is really important.

A decision that was not a particularly significant decision in the scheme of things. It was only a case involving a motor vehicle accident, but it was a very good illustration of the importance of obtaining statements and undertake investigations early in that case.

There was a motor vehicle accident and the evidence of any other people other than the drivers would be was critical.

There was a person who witnessed the incident who could provide, could have provided cogent evidence his name was Mr Hertz. But by the time.

The matter went to trial many years after the incident.

Mr. Hertz was suffering from Alzheimer's, and so he really couldn't give evidence.

An investigation was done and, the statement was taken from him approximately 2 years after the incident.

And in the end, the judge ruled that that statement was not admissible because of his condition, which had been deteriorating, and because it was taken two years later, the judge simply determined that it wasn't of sufficient probative value, wasn't sufficiently reliable enough.

For him to accept it into evidence. Now had that statement being taken within a short period of the incident, and I'm suggesting within a couple of weeks it's my opinion that it would have been admitted into evidence. It would have been a different result, so it's just a little example of how an early investigation can give you a more reliable outcome.

 

04:51 Sandy

Alright, thanks, so that's a great example.

So can we talk a bit more about legal obligations? So each state legislation advises that you must notify Worksafe immediately after becoming aware of a workplace death or if a notifiable injury has occurred?

What is a notifiable injury?

 

05:13 Piet

So, they are essentially serious injuries.

And for a complete list, you can go to the relevant Worksafe regulator in your state, but these injuries will include amputations, serious head injuries and the like. Thanks.

 

05:32 Amanda

Piet, when Worksafe have been advised of a workplace incident. What should the company who made the report expect from the investigators?

 

05:40 Piet

Well, firstly you can expect that a Worksafe inspector will enter your workplace at any time and I made a point in the webinar that the powers that some of these Worksafe inspectors have are actually more significant than police powers. Police need warrants to come into your premises and to seize your property, Worksafe inspectors do not. They can simply enter your premises at any time and they can take possession of any of your property and undertake further examination or testing. Or simply use it for evidence for their prosecutions. So in that respect, their power is greater than that of police officer.

They can interview any person at the workplace and again when you are requested by a police person to provide a statement, you don't have to.

You can seek legal advice when you are requested by a Worksafe inspector to provide a statement you are obliged to.

There are penalties, in fact, if once being compelled by a Worksafe inspector to provide a statement, you failed to provide it, so it's a hard and fast requirement.

 

07:07 Sandy

Who is responsible for notifying regulators?

 

07:10 Amanda

It's a good question, Sandy. The relevant person should be identified in a critical incident response plan that the organisation has developed. We'd always recommend at least two people being nominated on the critical Incident Response Plan.

 

07:23 Amanda

Piet, what are the regulators that do need to be notified?

 

07:26 Piet

Well certainly Worksafe and you can do that either by an online form or by telephone, and in the case of other types of incidences, there are other regulators in all States and territories. For example, if the injury results from a mining or an exploration operation, Mine Safety must be advised, and this can also be done either by phone or by an online form.

If it's a dangerous goods type of injury involving petroleum or geothermal energy operation, then that must be reported to the petroleum and geothermal energy operations, again by online form, by email or by telephone.

Dangerous goods to a dangerous goods officer.

Any injuries resulting from transport aviation, marine and rail accidents can be reported to the Australian Transport Safety Bureau, so this legislation in each state and territory which governs each of these regulators and when those incidents must be reported. But you will find that the timing is as soon as practicable.

 

08:35 Amanda

Excellent, and I suppose probably another thing to highlight at this point in time Piet is the importance of notifying any employee assistance programme or crisis counselling for those who are directly involved in the incident as well.

 

08:47 Piet

Absolutely. The effect that a serious accident can have on your employees cannot be under-estimated so as much as an employer can do in terms of providing support to those workers who have witnessed accidents or have been involved in accidents is once again an essential part of your critical response plan.

 

09:09 Amanda

Excellent and just with preserving the site. What would you recommend?

 

09:16 Piet

As a general rule I recommend that you treat it like a crime scene. We've all seen the forensic files and CSI shows on TV where they tape the areas off and patrol them and don't allow people in. It's a good idea to treat an incident like the crime scene, so that can be properly investigated.

Particularly in the case of serious injury. Now sometimes that can't occur. Sometimes you've got to take mitigating steps to prevent any further risk of injury. You don't want these things causing further problems to your work site, so indeed, employers are under a duty to prevent that from occurring, so sometimes it will be necessary to go into the accident area and fix it up. But if it isn't, then mark it off and leave it for the investigators.

 

10:14 Sandy

And for you both, I'd assume these responsibilities remain the same, even if it's an after-hours incident?

 

10:21 Piet

Absolutely yes.

 

10:23 Amanda

Agree Sandy and that point just ties into our next point here as well. Sandy as a client of EBM, you'll have access to the Risk Solutions Network which we have recently launched.

The Risk Solutions Network is a programme recently developed by EBM to assist our clients with their overall work, health and safety programmes.

We have engaged a network of experts across a range of disciplines. Phase one of the programme is focused on critical support for a significant incident.

The Critical Support Network will provide our clients with access to legal advice as well as employee wellbeing and assistance.

 

11:01 Sandy

And this leads us into legal professional privilege.

Can you take us through this?

 

11:07 Piet

Yes, thanks. The reason why EBM Risk Solutions Network includes legal support is for the concept of legal professional privilege. Legal professional privilege operates to protect communications between solicitors and clients from being exposed in a courtroom situation so that the parties can feel confident in identifying evidence, causes, outcomes, remedial measures.

The fear that those communications will be produced in court and will operate against the parties who are involved in those communications. It's an essential part of the legal process and the litigation process.

And is highly recommended in these situations.

 

12:07 Amanda

Piet, can you lose professional privilege?

 

12:09 Piet

Yes indeed you can. So care must be taken not to disclose the nature of the legal advice for fear that in fact you might wave that legal professional privilege, and it's a complicated area of law, and I won't go in any detail you can say and talk about the fact that you've had legal advice, the effect of which is X. But you can't then go on to talk about some of the premises upon which that legal advice is based on some of the reasoning of that legal advice, because if you stray into that area then it is highly likely that you have waived professional privilege and there are a number of cases confirming that position. And I've referred to one in the webinar.

 

12:59 Amanda

Thanks, Piet for that. I know critical response plans should state who is responsible within the business to respond to the media or third parties should an incident occur.

What else needs to be considered when it comes to the media or others from making enquiries?

 

13:12 Piet

Yes, responding to the media is really critical in today's environment, isn't it? When the media is so ever present?

I think one of the first things is that it's important that family members be contacted in the event of a serious injury before they hear it through the media, so the flow of information must be controlled.

Media inquiries should be directed to one person and your critical response plan should identify who that person is and should provide somewhat of a pro forma script for responding to those media enquiries.

That response should be measured so that it doesn't compromise any investigation, be it by any regulator, or be it an internal investigation by releasing too many unnecessary details.

I think that a plan for a debriefing post-injury should be included in the critical incident response plan so that all parties can learn from the experience, not only what to do and what not to do in terms of the circumstance of the injury, but also you can gauge the effectiveness and adequacy of your critical response plan and how well that has worked to protect the organisation and the individuals involved with in it.

 

14:45 Amanda

The Risk Solutions Network does offer the debriefing as well as part of the critical incident support.

Also Safework Australia have some guidance material for developing a critical incident response plan, which I've found beneficial when I've looked.

 

15:03 Piet

Yes, well I'd urge organisations to look at those guidelines within Safework Australia and to develop their own critical response plan.

Some of the things that it should address is what documents can be released and clearly only documents that are relevant to the investigation should be provided and I've touched on it before. The powers of Worksafe inspectors to compel interviews, it's important that Worksafe inspectors don't get voluntary statements from your people. It's important that they compel your people to provide those statements because only under compulsion is a statement protected.

If it's provided voluntarily, then it can be used in other courts.

But if it's provided under compulsion, then it's protected from being used in other courts and the only circumstances in which it can be used is if a person has lied in making the statement and then of course that person might be followed up for perjury or making a misleading statement.

The process of providing statements to Worksafe inspectors, especially in the context of a serious injury, can be quite daunting for employees and quite stressful, and I've been involved in a number of them where I've provided support without actually saying a great deal, but a little bit of a pre interview briefing and a bit of a debrief just to demonstrate to the employee that he or she is supported by the organisation.

It's also important that when providing statements to Worksafe inspectors the employee sticks to the facts and doesn't start speculating or apportioning blame to people or organisations attributing causes the employees.

Or witness statements are not there to provide opinions. They're there simply to report on the facts so that the investigating authorities and other persons might then draw their opinions from those facts, but.

It's very common and it's almost a natural instinct, especially in the case of serious injury that people want to ascribe a cause or a fault, and it's very equally as important that that's not done for the purpose of these interviews.

 

17:58 Amanda

Thanks, Piet. Great just also want to let people know that Jarman Legal is a member of Risk Solutions Network as well so they can be contacted for further advice.

 

 

00:18:10 Sandy

OK well, thanks Piet and Amanda and that really highlighted the importance of having a critical incident response plan.

Thank you for that.

So before we finish up today, Piet, is there anything else you'd like to add for our listeners?

 

18:24 Piet

Yes, in the event of a crime, if there is a suspicion that a crime occurred then, of course, the first entity that must be notified is the police.

 

18:38 Sandy

Well thank you to you both for joining us again. I'm hoping to have you both back for a third time. No pressure.

To our listeners, if you would like more information on this topic, please take a look at the recent webinar Piet delivered for us.

In the webinar, he takes us through some very interesting case studies that detail what we've discussed today. Just head to YouTube and search for EBM Insurance & Risk and you'll find all of our webinars are available to watch so please take a look.

Also, our entire podcast series can be accessed via Spotify plus we have links to each episode on ebm.com.au.  You'll also find a previous episode that starred Piet and Amanda.

Finally, as always, if you do have any questions, please reach out to the EBM team on 1300 755 112.

Thank you.

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