HO-HO-NO! DON’T LET IT HAPPEN TO YOU!
When an incident occurs, your initial response is critical. Not just to ensure the safety of your workers, but for your long-term legal standing. Far too often, we've seen well meaning companies misstep, turning what would otherwise be a manageable situation into a full-blown legal crisis.
And that's why this Christmas Season, we're sharing our list of the 12 most common mistakes organizations make following an incident. Mistakes that not only hinder their ability to prove due diligence, but also increase the likelihood of prosecution!
If you’re interested in learning more, check out our “Pretty Darn Good” Spring Safety Seminar and Top Guns of Safety Series, where we delve into what it really means to be dogfight-ready!
Now, without further ado, our gift to you!
The 12 Post-Incident Mistakes That Keep Us Up At Night:
1. Failing to Understand the Difference in Mandate - there is a difference between “inspections” and “investigations”, with the latter including an element of fault-finding, and entitling you to more rights;
2. Paralysis or Uncertainty - taking a position on the sidelines, watching the inspection or investigation unfold, and relying on OH&S inspectors or investigators to “get it right”;
3. Taking an Early or Overly Aggressive Stance - officers have a lot of discretion when it comes to how a matter plays out, and whether enforcement action is taken;
4. Failing to Retain Counsel - retaining counsel does not mean you’re trying to hide things;
5. Failing to Make a Good First Impression - for example, conceding that hazard assessments weren’t being done when they were, or failing to recognize that the investigators themselves are also workers, and that you need to ensure their health and safety too (which may mean putting them through your orientation, providing an escort for them, etc.);
6. Failing to Shadow & Document the Officer(s) - an early understanding of their focus is critical;
7. Failing to Question “Demands” for Information - it is not uncommon for officers to request information that goes beyond what OH&S is actually legally entitled to;
8. Failing to Appeal Stop Work, Stop Use, & Compliance Orders - the very existence of such an Order can increase the likelihood of enforcement action being taken, or act as a “multiplier” to any penalty that may be forthcoming in the future;
9. Investigating for OH&S Instead of for the Company - focusing on the “bad” (what went wrong), instead of on the "good” (what went right), when it’s the “good” that you’ll need to prove due diligence;
10. Failing to Establish Legal Privilege - without engaging privilege, those 15-25 contributing factors you identified can and will be used against you in the future;
11. Providing OH&S More Information Than They Are Entitled To & Failing to Understand How It’ll Be Used - including how post-incident conduct can be used to prove the actus reus, and that at some point, the request is no longer for investigative purposes, but for the purposes of a prosecution; and
12. Drafting Your Incident Report for OH&S Instead of for the Company - not recognizing that the incident report is your first real opportunity to flesh out the proper narrative, and the weight that carries in determining how (and if) a matter proceeds to prosecution.