Investigating workplace accidents and safety incidents
These incidents different from other types of workplace investigations
Feb 9, 2016
By Brian Kreissl
Most HR practitioners are familiar with the need to conduct proper workplace investigations in the case of alleged harassment, violence, theft, fraud or other types of wrongdoing.
Such investigations must be fair, impartial and thorough, consider all of the evidence and include interviews of all of the parties involved. One of my previous blog posts outlined some best practices in conducting a workplace investigation.
It is also important to ensure procedural fairness, inform the alleged perpetrator of the accusations against him and provide the accused with a chance to respond to the allegations. At the end of the investigation, it is important to document the findings of the investigation and provide recommendations.
While the actual investigation may or may not be completed in-house, it would generally be facilitated or overseen by someone in the HR department. Regardless of who conducts the investigation, managing and overseeing workplace investigations are definitely within the mandate of the HR function.
The goals of such workplace investigations are to establish what actually happened, determine whether discipline is warranted, gather evidence and provide information to support litigation. Because these aren't criminal proceedings, the standard of proof is on the balance of probabilities — as opposed to the more stringent criminal standard of beyond a reasonable doubt.
But what about investigating occupational health and safety issues where there is a possibility of criminal or quasi-criminal charges being laid against the organization itself? Are there any factors that make accident and incident investigations different from other types of workplace investigations?
Investigating workplace accidents and other types of incidents (which include not only accidents resulting in injury, but also those that have the potential to cause injury or property damage) is a little different from other types of workplace investigations. For one thing, the focus should primarily be on prevention and establishing causation as opposed to trying to establish fault or blame on the part of one or more workers.
Occupational health and safety legislation establishes a duty on employers with respect to the reporting and investigation of serious incidents and fatalities. Joint health and safety committees also have specific obligations placed on them with respect to these types of investigations, and collective agreements and internal policy manuals may also establish obligations over and above those found in the governing legislation.
The legislation typically provides that certain incidents must be reported to the relevant authorities and investigated by the employer. This includes not only fatalities and serious injuries, but also (depending on the legislation) other types of incidents such as fires and explosions.
The people who conduct accident and incident investigations require training, with the legislation in some jurisdictions providing that investigators must have certain qualifications. Investigators must probe for the underlying reasons behind workplace accidents and incidents in order to prevent similar events from occurring in the future.
While HR is unlikely to conduct such investigations themselves, HR is frequently tasked with at least part of the development of the framework relating to incident investigations. However, occupational health and safety really is everyone’s business — including workers, supervisors, managers, unions, health and safety committees and the HR function.
Because occupational health and safety is everyone’s business, the best practice is to establish one or more cross-functional investigation teams to investigate such incidents. Another best practice is to prepare incident investigation kits in advance which include all of the tools, materials and policies required to investigate the incident (including notebooks, pens, pencils, checklists, personal protective equipment, etc.).
While investigations must be completed as soon as possible in order to preserve evidence and interview parties while their memories are still fresh, the first priority should always be to rescue any injured parties and secure the location of the incident. When conducting the investigation and making recommendations, it is important to continue to ask “why” in order to get at the root cause of the incident in question. Nevertheless, it is important to reassure witnesses that the purpose of the investigation is to determine what happened as opposed to determining who was at fault.
Readers can learn more about incident investigation techniques by reading the second edition of Canadian Labour Reporter Special Report: Accident/Incident Investigation in the Workplace, by Dilys Robertson. We also have other resources on workplace investigations, including the Human Resources Guide to Workplace Investigations, by Janice Rubin and Christine Thomlinson.
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Brian Kreissl is the product development manager for Thomson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions.