Section 6: Incident Investigation

Transcription

1 Section 6: Incident Investigation

2 Section 6: Incident investigation Contents: 1. Trade union and health and safety reps rights around incident investigation pg The problem with blaming workers for not following procedures pg Tips for investigating accidents and incidents pg Introduction When a worker dies, is injured or falls sick because of an accident or incident at work, the employer has a responsibility to investigate. In some cases, the employer will act quickly. But, their goal is often to avoid admitting too much responsibility, rather than to identify hazards that should be eliminated or controlled. So they might try avoiding any investigation at all, or only do a halfhearted investigation. They are also quick to blame the worker for the problem arguing that the worker was careless or negligent, or did not follow safety precautions. But blaming the injured, ill or dead worker for causing the incident is missing the opportunity to find and address the real hazards. Workers and unions need to be part of the investigations, or to conduct an independent investigation to find the root cause of the incident. Trade unions, shop stewards and health and safety representatives need to confidently and quickly assert their right to investigate incidents. The Occupational Health and Safety Act of 1993 (OHS Act) gives health and safety representatives the right to be part of incident investigations, and trade unions must not give up these rights. In fact, trade unions need to try and extend these rights. And once the investigation has been completed, it is important that health and safety representatives fight for the correct measures to be put in place to avoid such an incident in the future. 6-1

3 1. Trade union and health and safety reps rights around incident investigation Investigating each incident at work is important for two reasons. First you must identify the root causes of the incident. Second, you must make sure measures are put in place to prevent a similar incident in the future. For the findings of an investigation to be useful, there needs to be thoughtful input from the workers who know that blaming workers for their injuries is usually not correct. Workers have rights around incident investigation through their elected health and safety representatives. In the OHS Act, health and safety representatives have powerful and specific rights to be involved in incident investigations both those done by the employer and those done by the DoL. Unions and elected health and safety representatives have an important role making sure measures are put in place to address the hazards that caused the incident. Employers often have a policy on incident reporting and investigation that does not include a role for elected health and safety representatives. This does not mean health and safety representatives must go along with that policy, and let go of their rights in the OHS Act to take an active part in an investigation. Unions can negotiate with employers over incident investigation policies and practices in their workplaces. For example, unions can negotiate to go beyond what the law requires to include what they believe is needed. Employers must record and investigate all injuries and illnesses that occur at their workplace There are four actions the employer is legally bound to undertake regarding all injuries and illnesses occurring at the workplace. 1. The employer must keep a record of all incidents which result in the person having received medical treatment other than first aid. This is a broader definition than the incidents that employers must report to the DoL, which is described below. 2. The employer must ensure each recorded incident is investigated. The employer can appoint a person to investigate, or can designate a health and safety representative or a member of the health and safety committee to investigate. The investigation must begin within seven days and be finished in a reasonable amount of time, or before a contract worker s contract ends. 3. The record of incidents and investigation must include specific kinds of information (see Annexure 1 of the GAR). This record must include suspected causes of the incident and recommendations to prevent a reoccurrence. 6-2

4 4. The employer must ensure the health and safety committee examines every recorded incident, and the outcome of every investigation, at their next meeting. [GAR 9 and GAR Annexure 1] Employers must act on recommendations from incident investigations The employer must act on recommendations from any incident investigation, to prevent a reoccurrence. The employer must ensure that necessary actions that are reasonably practicable, are implemented, and then followed up to prevent the reoccurrence of similar incidents. The term reasonably practicable is defined in the OHS Act, Section 1. [GAR 9(4)] Right of health and safety reps to take part in incident investigations Health and safety representatives have substantial rights in the law to take part in incident investigation and to critique the employer s investigation. Some of the functions of health and safety representatives give rights directly related to incident investigation. Other functions give rights that aren t directly about incident investigation, but may be useful when defending the position that a health and safety representative should take part in all incident investigations. The rights can be divided into two: those the health and safety representative must implement, and those he or she may implement if necessary or desired. 1. Rights that must be implemented Health and safety representatives shall visit the site of an incident at all reasonable times and attend any inspections going on there. Health and safety representatives must attend any investigation or formal inquiry held in terms of the OHS Act. This means attending both DoL investigations and any other employer investigation held in terms of the Act. The GAR 9 requirement for employers to investigate all injury and illness incidents is included. Health and safety representatives must inspect any document the employer is required to keep as a result of the OHS Act 2. Rights that may be implemented Health and safety representatives may: [OHS Act 18(2)(a), (b), and (c)] review the effectiveness of health and safety measures; identify possible hazards and potential major incidents; 6-3

5 in collaboration with the employer, examine the causes of incidents; investigate complaints by any employee relating to that employee s health and safety; make representations to the employer and the health and safety committee about any of these issues listed above, or if these fail then to an inspector. [OHS Act 18(1)(a), (b), (c), (d), and (e)] Right of health and safety reps to bring in outside experts 1. A health and safety representative may be accompanied by a technical advisor during inspection, with the permission of the employer. The employer may not unreasonably deny permission. [OHS Act 18(2)(e).] 2. A health and safety committee may co-opt persons with special knowledge of health and safety matters to advise the committee. [OHS Act 19(6)] Right of the health and safety committee to review incident reports 1. Health and safety committees have a specific role regarding incidents and investigations. [GAR 9(4)] The health and safety committee shall discuss any incident where a person was injured, became ill, or died. The health and safety committee may report in writing to a DoL inspector on any incident. [OHS Act 20(1)(b)] 2. The employer must ensure the health and safety committee reviews every recorded incident and resulting incident investigation report. Employers must report incidents to the DoL 1. Employers are obliged to report certain kinds of incidents that happen at their workplaces to the DoL. [OHS Act 24(1)]. An incident is defined here as something that happens in the worksite that results in: a person dying, becoming unconscious, losing part of a limb, being seriously injured to the point they may die, or will be permanently disabled, or unable to work at their usual job for at least 14 days; a major, catastrophic event; a person s health or safety being endangered by a spill of a dangerous substance, an uncontrolled release of a substance under pressure, or a machine that fails causing parts or other materials to fly away, move or fall; a machine running out of control. 6-4

6 2. The incident must be reported in writing to the DoL Provincial Director within seven days. In the case of a death, unconsciousness or serious injury the incident should also be reported immediately to the DoL Provincial Director by telephone, fax or similar means. [GAR 8] 3. In the case of a traffic accident on a public road, the employer does not have to report it to the DoL. Instead the SAPS officer who investigates the incident is supposed to report it to the DoL. [OHS Act 24(3) and (4)] Powers of DoL inspectors during an inspection 1. Based on reports of incidents, the DoL may choose to investigate. An inspector may investigate an incident, in order to determine if a formal inquiry should be held. [OHS Act 31(1)] The chief inspector may direct an inspector to hold an inquiry into an incident. The chief inspector shall hold an inquiry if a person requests one by presenting prima facie evidence of an offence related to the incident. [OHS Act 32(1)] 2. A DoL inspector has extensive powers to investigate during an inspection. An inspector may: inspect, without notice, any relevant part of the premises; question any person, alone or in a group, on any matter related to the OHS Act, and, direct people (including former workers and managers) to make themselves available to be interviewed; demand any records he or she thinks need to be provided and he or she can review and copy them; ask for an explanation of any entry in the documents; inspect anything which is on the premises and remove them to be examined or analysed; seize anything that might be evidence in a trial; ask an interpreter, a SAPS member, or an assistant to accompany him or her. [OHS Act 29(1) and (2)] DoL enforcement: issuing notices and prosecution Issue notices An inspector can issue three types of notices to an employer (or worker) if he or she finds unsafe conditions at a workplace. In each case the notice directs the employer (or worker) to take certain actions (or to stop certain actions) to address the problems seen by the inspector. The three types of notice are: 6-5

7 1. A prohibition notice for serious hazards found by the inspector. The notice can prohibit use of certain machines, equipment, hazardous substances, or processes or prohibit specific actions until the hazardous situation is shown to be fixed. [OHS Act 30(1) and (2)] 2. A contravention notice tells the employer that a contravention of the OSH Act exists. The notice can direct that the problem be corrected within a specific time limit. [OHS Act 30(4)] 3. An improvement notice directs the employer to improve the health and safety measures they are taking in the workplace. It does not mean a contravention has been found, but in the inspector s judgement, the employer s measures need improvement. [OHS Act 30(3)] Prosecution 1. The DOL shall send the findings of their post-incident investigation or inquiry to the Attorney General and to the Chief Inspector. This is presumably so these officials may decide whether any contraventions of the law should be prosecuted, or to use the findings in an inquest. [OHS Act 31(3) and 32(12)] 2. If an employer is prosecuted and convicted of an offence, including the obstruction of or refusal to co-operate with an inspector, the employer can face a fine or imprisonment. [OHS Act 38] Right of health and safety reps to participate in DoL incident investigation, inspection, or inquiry The DoL may investigate after an incident, as defined in the OHS Act, is reported to them. Health and safety representatives have a number of rights related to DoL activities at their workplaces. 1. Health and safety representatives shall: Attend any investigation or formal inquiry held in terms of the OHS Act. This means both DoL investigations and any other employer investigation held in terms of the Act. The GAR 9 requirement for employers to investigate all injury and illness incidents is included. Accompany an inspector on any inspection. [OHS Act 18(2)(b) and (d)] 2. Health and safety representatives may: participate in consultations with inspectors at the workplace and accompany inspectors on inspections receive information from inspectors. [OHS Act 18(1)(h) and (i)] 3. Any person with an interest in the issue of a formal inquiry being undertaken by the DoL may put questions to witnesses at the inquiry, as the presiding inspector allows. They may do this personally or by using a representative, 6-6

8 advocate or attorney. The injured person, a recognised trade union, or any trade union the injured worker is a member of, are specifically considered to have an interest in an inquiry. [OHS Act 32(5)(b) and (c)] 4. The employer must advise, in writing, all persons who witnessed an incident, the unions representing these witnesses, and anyone else the inspector specifies. The written notice must include the date, time and place of the inquiry and that they must attend the inquiry. [GAR 10(2)] Shop stewards rights regarding incident investigations The union has an automatic right to participate in DoL inquiries (see above). Shop stewards who are not health and safety representatives do not specifically have the right to be part of employer incident investigations in the way that health and safety representatives are. However, shop stewards can use their more general LRA rights to try get in on incident investigations, or at least to gain access to the documents related to the incident, including the investigation report. For example shop stewards have the right to: monitor employer compliance with any law regulating terms and conditions of work; [LRA 14(4)(b)] have the employer disclose any information needed to effectively perform their functions under LRA 14(4); [LRA 16(2)] have the employer disclose any information needed to engage effectively in consultation or collective bargaining. (Recall that a health and safety committee is a consultative body.) [LRA 16(3)] General employer obligation to maintain a safe workplace Aside from the rights of unions and health and safety representatives, employers have obligations under the law regarding health and safety. You can always rely on these obligations to pressure an employer to respond to an incident with constructive actions to eliminate or control the hazard that caused the injury. 1. The employer has a general duty to provide and maintain a safe working environment, without risk to the health of workers, as far as is reasonably practicable. It must ensure health and safety laws are being complied with in its workplaces and for its employees, wherever they are working. This includes such responsibilities as: Provide and maintain a safe and healthy workplace with safe systems of work, and safe plant and machinery. Identify the health and safety hazards of the work processes used. 6-7

9 Establish what precautionary measures are needed to protect workers from harm from the hazards, and ensure the precautionary measures are put in place. Controlling hazards, first by eliminating the hazard or by controlling or reducing the risk posed by the hazard, before resorting to the use of personal protective equipment. (That is, they must follow the hierarchy of control measures which prefers to control hazards at the source rather than at the worker.) Ensure work is supervised by people knowledgeable about the hazards and with the authority to ensure precautionary measures taken by the employer are in place. Provide information, instructions, training and supervision to ensure the health and safety of employees doing the work. Not allow employees to do work tasks where the hazards of that work have not been identified and properly controlled. [OHS Act 8] 2. Employers have a duty to inform employees, in a way they understand, about hazards of their work and the precautionary measures in place to address those hazards. [OHS Act 13] 3. There are a number of health and safety regulations, addressing specific hazards, which the employer also must follow. Looking at the requirements of these regulations may be helpful during an incident investigation. 4. If a contractor or subcontractor is involved in the incident, both the (sub) contractor and the employer using the (sub)contractor may be responsible for doing an incident investigation. A contractor or subcontractor is referred to as a mandatory in the OHS Act. [OHS Act 37(2) and (3)] Employee responsibility Employers often claim their employees are responsible for incidents by doing unsafe acts, not following employer policies, or failing to notify the employer of hazardous conditions. The OHS Act does put some responsibilities on workers to be reasonably careful at work, to report unsafe conditions, and to report incidents. These obligations of workers do not outweigh the number and variety of obligations of the employer to establish and manage its workplace to be healthy and safe for the employees to work in. The employer has the primary role and legal responsibility to ensure a safe working environment not the workers. [OHS Act 14] 6-8

10 Incident investigation findings and incapacity dismissal cases Employers are expected to make reasonable accommodation of workers who are ill or injured or have a disability, so that they can remain at work. The courts have ruled that the employer s duty to accommodate the incapacity of an employee is greater if the incapacity is due to a work-related injury or illness. Documenting all injuries and illnesses at the time they happen is crucial for protecting the worker, if he or she becomes disabled. It enables the union to increase pressure on the employer to accommodate (to keep) the worker on. This will be more effective if the incident investigation s finding goes beyond blaming the worker to instead document the management failures that led to the incident. [LRA, Schedule 8, 10(4). This is the Code of Good Practice: Dismissal.] Incident investigation findings and worker compensation The findings can be useful in claiming additional compensation for workers and their dependents. It is important for elected health and safety representatives to exercise their rights to participate in incident investigations. They can gather evidence regarding the causes of incidents and document the employer s compliance or non-compliance with the law at the time of these incidents. This evidence will be important in determining whether or not there are grounds for alleging negligence. Any evidence of negligence can be used to assist a worker (or the dependents of a deceased worker) apply for increased compensation. Incident evidence disappears with time and will not wait for formal hearings, and evidence of negligence is quickly covered up. Therefore it is important for an incident investigation team to act quickly in undertaking its work. You can also assume that if an incident involved employer negligence then the employer will not investigate and record this evidence. Therefore it is important for health and safety representatives, or trade union representatives, to participate in incident investigations and to gather their own evidence that may be used to submit applications for additional compensation. These investigations should be thorough so that the evidence gathered can support the worker and inform the compensation process below. COID Act process: additional compensation where negligence is alleged A worker who was involved in an incident or who has an occupational disease which is the result of the employer s negligence (or the result of the negligence of an employee, who has been charged by the employer), has the right to apply for increased compensation. [Compensation for Occupational Injuries and Diseases (COID) Act 56] The total compensation (additional compensation and all other compensation awarded by the Compensation Fund) is determined by the 6-9

11 Director General, and cannot be more than the total amount of money that the worker lost as a result of the accident or occupational disease. The worker must apply within two years of the incident to the Compensation Commissioner for increased compensation. This application must include details of the alleged negligence, the nature of the evidence, the names and details of witnesses to the incident and the nature of the evidence that each witness can provide about the incident. The DoL s Director General will take steps to determine whether or not there was negligence by appointing an assessor to undertake an investigation [COID Act 6 and 7]. The Director General may adjudicate the claim for additional compensation, based on the investigation and the available evidence. Alternatively the Director General may decide to convene a formal hearing. [COID Act 45] The Director General may take a long time to make a decision or to convene a formal hearing to consider the evidence of negligence. It is therefore important that health and safety representatives and shop stewards lay the foundation for a successful application for increased compensation, by gathering the relevant evidence in the incident investigation. 6-10

12 2. The problem with blaming workers for not following procedures Many incident and injury investigations end when it is concluded that an injured worker did not follow the procedures for the job task. A good investigation team digs deeper to discover why a worker did not follow a work procedure. This further examination almost always reveals problems in the procedures system, rather than a problem with the worker. To prevent similar incidents in the future the root causes in the procedure system must be fixed, rather than just blaming the injured worker for not following the problem procedure. The investigation team should ask questions such as these when procedure was not followed: 1. Does a written procedure exist, and is it readily available to workers? 2. Was the written procedure confusing, incomplete, or difficult to follow? 3. Was the procedure specific to the job or was it a generic procedure? 4. Has adequate training been done on the use of the procedure? 5. Was the procedure up-to-date with changes in the equipment, tools and job processes? 6. Were the drawings or diagrams used in the procedure adequate? 7. Does the procedure list all steps in the proper order? 8. Does the procedure warn of the special hazards of the task? 9. Has the procedure been approved and audited by management? 10. Do the workers doing this task usually follow the procedure, or do they usually do the task in a different way? 11. Have problems with the procedure or task been raised to management in the past? Source: based on a fact sheet from PACE/Labour Institute Incident Investigation Training manual, 1996(USA) 6-11

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17 Source: Extracted from Information Sheet from the Department of Consumer and Employment Protection. Government of Western Australia. 6-16

18 Postal Address Industrial Health Resource Group, Princess Christian Home - University of Cape Town, Private Bag, Rondebosch 7701, Cape Town, South Africa INDUSTRIAL HEALTH RESOURCE GROUP Physical Address Industrial Health Resource Group, Princess Christian Home, Matopo Lane (below M3 highway), Lower Campus, University of Cape Town, Mowbray The Industrial Health Resource Group (IHRG) is an occupational health and safety training, advice, research and resource development unit based in the School of Public Health and Family Medicine at the University of Cape Town. IHRG has provided health and safety services to workers and the trade union movement in South Africa since These services include: Workplace accident investigations OH&S advice and support service Risk assessments Education and skills training workshops for workers and trade unions, and Research and advocacy work on policy development in OH&S and HIV Over the years IHRG has produced a range of accessible and popular resources communicating health and safety information to workers. You can contact IHRG to order these resources: Organising for health and safety A guide for trade unions Health and Safety Networker Newsletters (Issues 6 and 7) Workers Health and Safety Rights poster Protect Your Health At Work poster Organize to Make Work Healthy and Safe poster Occupational Health and Safety Act (OHSA) booklet Compensation for Occupational Injuries and Diseases Act (COIDA) booklet Make Work Safe poster HIV/Aids poster Telephone: Facsimile: IHRG-admin@uct.ac.za