Australia: What's in your sights? Internal workplace investigations must pass the credibility test

This article was first published in National Safety - a magazine of the NSCA Foundation. A PDF version can be found here.

A key element in nurturing a safe workplace culture is thoroughly addressing and promptly investigating all incidents and near misses internally.

Not only is it a legal requirement to report all incidents internally and, when applicable, report them externally, it demonstrates to workers that the organisation takes safety issues seriously. It also encourages workers to report safety issues and shows that the leaders of the business are committed to upholding the principles of a positive safety culture, and that they place a high value on worker wellbeing.

The process for an internal investigation can vary depending on the location, activity and severity of injury or consequence arising from the incident. However, the purpose remains the same: fact-finding; future risk management and the prevention of similar incidents.

Immediately following an event or incident, the site should be secured and made safe, and the immediate needs of those involved should be met. If it is a notifiable incident, as defined under applicable Workplace Health and Safety (WHS) legislation in the relevant state—generally an incident that results in death, serious injury or serious illness of a person, or involves a dangerous incident—the regulator needs to be informed promptly.

This article outlines the recommended steps for an internal investigation, as distinct from an investigation by a regulator.

Identify the investigator

It is important that only people with suitable skills and experience carry out internal investigations. Consider whether the investigation should be outsourced— are the risks or consequences such that it should be protected by legal professional privilege (protection of communications between legal practitioners and their clients), in which case an external lawyer should commission the investigation?

Alternatively, is it more appropriate to have a manager conduct the investigation, because of their familiarity with the workplace and day-to-day activities? Are they sufficiently removed from the scene and witnesses to allow them to independently and impartially investigate the incident? Getting the investigator right is the first step to a successful investigation.

Gather the facts

Also, doing your research and collecting all relevant facts lays the foundation for a sound investigation. This usually involves initially interviewing the injured person and asking them to explain what happened. The questions should be open-ended, allowing the injured person to elaborate while the investigator prompts them when necessary. It is important to encourage the interviewee to present all the facts completely, so the causes behind the incident can come to the fore.

If plant or equipment were involved in the incident, measurements and specifications of the equipment should be taken into account. Consider whether the equipment is in good repair and whether the safety features are working. Take photographs where necessary and obtain the equipment manual. If chemicals are involved, ensure the safety data sheets are obtained.

Establish a timeline of events leading up to the incident. If there were witnesses, it is important to interview them, too. It may be necessary to interview the injured person or witnesses a second time if there are conflicting accounts. The investigator should ensure all witness interviews are recorded (with the interviewee's consent) either electronically or in writing.

Identify contributing factors

There could be a multitude of contributory factors to any single workplace incident. It will be necessary to consider the workplace environment, both in a physical sense as well as a psychological one. Examine the workplace practices and procedures, not just as they are detailed in manuals or policies, but as they are actually performed on a day-to-day basis. Consider the design of equipment and materials used. Understand organisational and system factors. The investigator should explore whether there were any human factors involved in the incident, such as fatigue, inattention or other health issues.

Considering any possible contributing factors involves stepping back and assessing all possible issues that may have surfaced after initially gathering the material facts.

Consider operational issues

The investigator should consider what work processes are in place and must be followed, and should also check documentation in relation to those processes. Further, the investigator should consider training records and whether appropriate training was provided and kept up-to-date for individuals involved in the incident. It is important to check registers and instruction manuals to ensure that operational controls are not only in place, but followed.

Understanding where these operational controls failed is an important consideration at this stage. Why didn't they work? Do they need to be reviewed and updated? It may be necessary to contact a supplier or manufacturer of equipment or materials to obtain further information. The investigator should then consider what is needed to prevent a reoccurrence of the incident. There may be a need to notify, retrain or educate staff, depending on the outcome of this step.

Making recommendations

Finally, the investigator needs to decide on an action or—more likely— a range of actions to be undertaken to prevent a reoccurrence; these can be both short- and long-term controls. It is necessary to document this information, for future reference.

This involves consultation with both the injured party and management to determine what steps are reasonably practicable. At this stage, discussions should be had about who is doing what, and a timeline of dates be put in place so that all those involved know when action items are to be completed. Workplace health and safety representatives or committees should also be involved at this stage.

Communicating the way forward and monitoring compliance

In most circumstances, it will be necessary to inform everyone who needs to know of the recommendations and actions to take place as a result of the incident, not just those immediately involved in the incident. This may require circulating the investigator's report or its findings, although care should be taken if the report has been obtained under legal professional privilege. In those circumstances, legal advice should be sought to ensure privilege is not waived.

It is important that all individuals involved, and those in the broader workplace, are aware that they have certain responsibilities for their actions (or lack thereof). Further, it is vital that the actions put in place are followed up on a regular basis, to ensure they are working, and being followed as intended. Have the recommended changes been made? Have the desired results been achieved? WHS obligations are positive and onerous ongoing obligations to be monitored and controlled on a continual rather than reactionary basis.

Aside from strict legal compliance, internal investigations that are rigorous, properly conducted and effectively communicated are more likely to stand up to external scrutiny.

They are also likely to have a great impact on establishing and maintaining a positive safety culture in the workplace, which, in the long run, is more likely to reduce the risk of incidents reoccurring in future.

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories