The Do's and Don'ts of responding to safety incidents
Posted on July 02, 2015
Many important and complex provisions of the Work Health and Safety Act 2012 (SA) (WHS Act) are immediately enlivened the moment that a safety incident occurs in a workplace. Here, we provide a breakdown of some of the main do’s and don’ts for managing safety incidents.
Do notify SafeWork SA
The WHS Act requires that a PCBU must ensure that the regulator is notified immediately after becoming aware that a notifiable incident has occurred in the workplace. A “notifiable incident” means the death of a person, a serious injury or illness, or a dangerous incident. Notice of the incident must be given by the fastest possible means by telephone or in writing. A failure to report a notifiable incident in accordance with the WHS Act may lead to a maximum penalty of $10,000 for an individual in breach, and $50,000 for a body corporate.
Don’t delay medical treatment
If a worker has been injured on-site, an ambulance should be called immediately. Not only is this in the best interests of the worker, but the Court has previously taken a negative view of employers who delay seeking medical treatment. For example, earlier this year in Dwyer v Hungry Jacks Pty Ltd [2015] SAIRC 2, the employer did not call an ambulance for an employee who sustained burns when hot oil from a deep fryer splashed on his arms and torso. Instead, the employee was left to call his father who rushed him to hospital. The Court noted this factor as a “concern” and the employer was fined $90,000 for the incident.
Do preserve the incident site
The WHS Act stipulates that the person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs. Where an incident site has not been preserved, an individual responsible may be fined up to $10,000, or $50,000 for a body corporate. It is important to note that the duty to preserve an incident site does not apply to any action:
- To assist an injured person;
- To remove a deceased person;
- That is essential to make the site safe or to minimise the risk of a further notifiable incident;
- That is associated with a police investigation; or
- For which an inspector or the regulator has given permission.
Don’t be unprepared
Many safety prosecutions involving substantial penalties being ordered by the Court have a common theme of a lack of preparation by the employer. Employers should have clear policies and procedures in place for responding to safety incidents and interacting with regulators/police/the media, as well as providing training to employees so that each one is aware of his/her role and responsibilities when a notifiable incident occurs.
Do seek urgent legal advice
When a notifiable incident occurs and is reported to SafeWork SA, you can expect that an inspector will be on-site promptly. For this reason, we strongly recommend that employers seek urgent legal representation so that a lawyer is present to assist in navigating the investigation process, as well as understanding your rights under the WHS Act. For example, the WHS Act contains a protection against self-incrimination which is often overlooked or misunderstood in the haste of a safety incident (to the employer’s detriment).
Once the immediate situation has been contained, it will be important to undertake an investigation into the cause of the incident, which may provide valuable evidence of shortcomings in safety systems and which may assist your organisation going forward. Conducting an investigation under legal privilege will mean that the outcome of an investigation will be exempt from production to the safety regulator.
Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice in relation to a safety incident, or in preparing your safety policies and procedures.
