“Do you feel guilty?” said the Prosecuting counsel to the senior project manager during cross examination. The death of a contractor occurred six months previous at a construction site he was working at. It is now the job of the Coroner to establish who the person was who died, when it occurred, what happened to cause his death, and why i.e. causation. It will be up to other courts to bring either criminal or common law action about.
The question, “Do you feel guilty?” is loaded, and the Prosecution knows it. If the manager in the witness box answers “no” he’ll be made out as not caring. If he answers “yes” he’ll be led in self-apportioning at least part of the fault to himself. Either way, the Prosecution have a field day.
The mock court situation, as positioned above, was but a taste of the litigious reality of cross examination in court. The context for the mock court was contractor/sub-contractor safety management.
It seems the most important issues for the Prosecution are finding holes at various levels regarding things like:
- Competence (i.e. in recruitment, training needs identification, the further training and development issues, and finally record keeping and checking) in determining the “fit” (or more appropriately, lack of fit) of the person.
- Contractor (and their contractor i.e. sub-contractor) selection: any links to lack of due process and rigour, including partiality. It will be found that it’s within the Principal’s control to know about various “sub-contractor” selection, and to then act accordingly. The selected contractors should know (without being led) what regulations, codes and standards apply to their work, and intimately. If they don’t, it’s a giveaway they’re not competent.
- Auditing, Checking and Sampling: the Principal must satisfy themselves and (key word) ensure that independent specialised checks are made.
- The Principal’s Supervisor: needs to be very much aware of the fine line of legal control and responsibility. Regular supervisor “drop-in’s” are critical but the supervisor must be careful to only advise on the general issues of workplace safety and health. Specialist issues pertaining to the actual contractor’s work should be verified by the independent checks the Principal must have in place. The moment the Principal’s supervisor gets involved in the detail of specialised work (which is contracted to a specialist contractor) is the moment the Principal assumes a level of control over that work they’ve reasonably contracted out (and transferred to some extent the risk on).
- Competent Supervision: What makes a supervisor “competent”? We’d expect there to be quite deep questioning in establishing whether supervisors are actually competent, to the level of detail of the minute tasks involved at the moment of (and moments leading up to) the death.
- Human Error: The Principal must reasonably cater for foreseeable human error by creating the systems to mitigate the consequences from same. Systems must deal with human frailties--these are the very things that unravel in coronial inquests--a “rigid/embedded safety system” that did not prevent serious harm. Management systems must deal effectively with deviation.
- Labour Hire: There must be a comprehensive understanding at the level of the Principal as to how the arrangements regarding consultation and communication are made. Sound change management practice is vital with labour hire.
- Fundamental & Stylised Risk Assessments: These should be fashioned and customised to each and every contractor, and the assessment should take place prior to work commencing.
- Principal’s Undertaking: Whatever the Principal needs to do in doing what they do, they’re responsible for. In other words, whatever support service is used in delivering the main service is part of the undertaking. Prosecutors are likely to peel the layers right back to the least support (enabling) service.
- High Risk Projects: the bigger the project the more variegated attention required to 1) risk assessment and 2) supervision.
- Non-English Speaking Background: Language difficulties and barriers (and to communication in general), wherever present, will present opportunities for exploitation from the prosecution.
The Principal’s role in contractor/sub-contractor management is to ensure competent and independent checks are made on the specialised work they have undertaken and also to ensure that any other risks apart from those specifically created in the specialised work are managed accordingly with sound arrangements in place. In other words, besides the specialised work, all other risks (these combining as safe place of work/safe system of work issues i.e. “the workplace environment”) the Principal is responsible for. The Principal is to supervise everything else other than the direct task the contractor’s brought in for.
According to Gerard Forlin (the Mock Prosecutor) coronial inquests are rather like “rough shooting”; you don’t know what will come at you. The real time experience and interaction of witnesses and family members of the deceased make for unpredictable going. Where there are juries involved (not currently in Western Australia), a massive amount of emotive influence is potentially evoked--all of this is directed positively toward the deceased person’s family and negatively at the company concerned. Everything is also transcribed, so nothing said can be ‘taken back.’ Principals can very easily (and very quickly) find themselves “love/40 down on match point.”
Prosecution goes back many layers, most often to source, for instance, reference checks. If referees are given, the onus is on the Principal to make reasonable efforts to confirm the veracity of referees and corroborate the claims made before engagement of the contractor. No ‘safe assumptions’ can be afforded.
The first signs of contractor incompetence need to be addressed. If the Principal fails to act quickly and there is an incident a gaping exposure is created. If a Principal receives an audit finding and doesn’t act on it, another dormant exposure lies in wait.
When all is said and done, Principals are expected to ‘follow the yellow brick road’ by enabling established practices mandated in legislation, codes and standards, or the plain question might be, “Why didn’t you follow established practice?”
According to Forlin, prosecutors are generally amazingly creative thinkers in understanding incident causation, peeling back the layers of truth revealing information previously not considered.
Forlin gave a very salient example to conclude with. Blackberries and mobile phones are supplied to employees. Given that Australia has about the third worst record of road incident trauma in the world, what are companies doing to manage the threat of employees using blackberries and mobile phones whilst driving? What about that ‘work-related’ phone call received on the commute to work… the once sharp line separating “workplace” and “non-workplace” begins to blur.
And, another thing… how often do companies check the status of employee driver’s licences? Annually was felt too infrequent.
Acknowledgement to Stan Sexton of the Public Transport Authority for arranging and facilitating this session.