Never admitting guilt is contrary to OHS principles

Many companies plead guilty to breaches of OHS legislation but remain convinced that they have done nothing wrong.

Employers have been constantly frustrated by never being sure that they are complying with OHS law because compliance is now a very grey area and one that  few people are brave enough to say has been achieved.  So it is no surprise when an employer responds to a workplace incident by saying “I’ve done nothing wrong”.  In their experience this statement is true but if they had a basic understanding of safety and OHS law (two very different things), they would know that if an incident occurs something must have gone wrong.

One of the frustrations of the safety profession is that, in the real world, when someone admits guilt it equates to an admission of doing something wrong.  That does not seem to be case in Law where guilty pleas are entered as a risk management strategy for reducing the level of penalty.  In the Courts, a guilty plea is often perceived as a cynical exercise by the employer (and their lawyer) while the families of the victim are looking for remorse, an expression of regret and maybe even an apology.

The Michigan Municipal League provides a MIOSHA Inspection Procedure form on its website to assist business operators. It advises:

“If the inspector finds a violation, never admit guilt or knowledge of the condition. Remember, the inspector is not there to help with internal safety efforts but to issue fines for violations.”

Look at the advice provided by several US insurance brokers to Risk & Insurance magazine in a 2008 article:

“Educate your employees. Instruct them to never admit guilt or take responsibility. Often, your employee or organization may not have caused the accident, but someone stepped forward and took the blame. You can even lose coverage because insurance will not cover intentional acts.”

The default setting in Western society seems to be to admit nothing unless guilt can be proven.  Safety is often “only follow the rules when the boss is watching” or only when there is a real threat of immediate penalty.  We see this in relation to speed cameras, the wearing of PPE, disciplining children in public and many other situations.

OHS is based on a no-blame system in a society that wants to allocate blame.  Society is clever enough to understand that some incidents are unavoidable but it also expects someone to stand up and accept responsibility for the mistakes that were avoidable.

Kevin Jones

reservoir, victoria, australia
Categories business, insurance, law, lawyers, OHS, safety, UncategorizedTags , , ,

9 thoughts on “Never admitting guilt is contrary to OHS principles”

  1. For mine I think the bottom-line is we are just not doing well enough with OH&S(W).
    Col Finnie has said it very eloquently, we are letting ourselves and others down.

    Having attended the SA WorkCover annual conference last week –

    I was left wondering when is all the talk going to end and finally put into practice what has been said, reheated and rehashed over the last 16yrs that I have been working to get the injured workers voices heard over the processionary caterpillars standing in a circle tell each other just how good they are.

    Not one thing said at any of the conferences, semminars, training days, newsletter, information sheets is of any value unless it is put into practice with the end result of less workplace injuries and deaths.

    Reading the summaries of cases changes nothing for any other firm except for the business being prosecuted, other similar businesses should do immediate audits to ensure that their workers are not put in the same risk situation.
    Instead they say such politie things as \”S… I hope we pick up some of their business\”.
    Charming really when you think about it.

  2. Hindsight is truly a wonderful thing. But there is a convenient way to get ya head around this issue of why people often choose to plead guilty, and that is to look through prosecution summaries. Not sure about other agencies, but WorkSafe Vic publishes \’em. Having read pretty well all of them, one characteristic dominates: the solution to stopping the fatality or serious injury was pretty obvious. I can\’t recall one summary where the response to reading the circumstances around the incident would readily be: \”Aw, now that was bloody unlucky!\”

    For mine I think the bottom-line is we are just not doing well enough with OH&S. It still is seen, in the big picture, as a slightly irritating distraction from the real business. Pure and simple.

  3. Generally the Australian case law i have reviewed, where a not guilty plea is offered, is generally around a technical matter over a point of law, not as a result of the company satisfied that it met it\’s duty of care or due dilligence obligations. Or that it was not liable, acocuntable or in part responsible. I agree with the comments offered that Guilty pleas are offered for commercial gain as a Not Guilty plea is actually punishable upon sentencing. As was the original comment, if there has been an incident, something has gone wrong. It is only a select group that look for blame. Most professionals look for understandings and reasonings.

  4. In response to Paul, injured workers all over Australia have to prove that they were injured at work, to the point where medical treatment is withheld until there is an investigation into the reason for the claim -not the injury, just the claim-
    I hold no hope for the Harmonized project, simply because even within State borders the OHSW investigators can not agree with themselves, so what hope has the process got for an OHSW investigator from NSW and an OHSW from WA got.

    It seems to me that until everyone accepts that safety within the workplace begins with them speaking out and when required saying no nothing will alter.
    Long-distance transport drivers will still drive unsafe times and unsafe distances just as they do now.
    Factory hands will take on excessive overtime just as they do now.
    Data collectors and call centre workers will continue well past accepted work times.
    All because the way the OHSW laws are ignored, not explained or simply forgotten.
    And it in the end it is the workers who pay the price with broken bodies, broken dreams and broken lives.

    I accept my responsibility to keep you safe.
    In return I just hope that you accept it is your responsibility to keep me safe.
    Fingers crossed.

  5. I believe that in NSW, part of this problem stems from the reverse burden of proof – ie employers are guilty until proven innocent. Couple this with the fact that proving innocence is near impossible and you have employers who end up with a sense that they are \”technically\” guilty under the law but that don\’t believe they could have reasonably done much more.

    Perhaps the new model of harmonised OH&S legislation will go part the way to solving this in some jurisdictions but without improved systems understanding (and therefore understanding systems failures) combined with investigations which target root cause, it\’s unlikely that may senior managers will see the error of their ways.

  6. I think there are two important points to consider here

    Defendants in OHS prosecutions will often plead not guilty for two distinct reasons, firstly positive performance duties are very difficult to challenge and secondly the decisions make commercial sense. When I say commercial sense I do not say so with any regard to morality, rather a distinct look at the financials involved with an offence that can be dealt with summarily in a Magistrates Court level in the case of a guilty plea as opposed to a not guilty plea which is heard at a higher level.

    The only time you are ever going to see a not guilty plea is where a company genuinely believes that there is a genuine prospect of a case failing or a test case to determine a point of law is the aim, eg. Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales.

    Companies can and do look at the financial implications of a plea deal irrespective of their personal beliefs. Some OHS practitioner’s loose focus on what the key stakes are after an event occurs and prosecution is on foot. As OHS practitioner we are tuned (correctly so) to encourage our organisations to take full responsibility for incidents with the aim of generating positive improvements. Prosecutions for companies on the other hand are different, OHS is criminal law and companies and their legal representatives will seek to limit the damage involved in these cases hence pleading guilty when they still believe, at least marginally, otherwise. In their eyes this is \’risk management\’ from a financial perspective.

    Workers Compensation is another field that is essentially a financially driven exercise, one that Tony quite correctly points out is actuarially driven. I have seen many forums where strong criticism is directed, in some cases deservedly so, at the insurance companies who are solely focussed on denying benefits to injured workers. What many forget, and in many cases simply do not know, is that those faceless insurance companies are actually working to meet performance targets set by the authorities themselves. It is those performance targets, connected to performance based remuneration, which creates the types of issues experienced in industry today.

    My advice for the smart OHS practitioner is to recognise the commercial realities of business and attempt to utilise those commercial realities to your advantage in creating a safer workplace. Unfortunately academic degrees do not have this subject in their ‘101’ list…

  7. A deliberate failure by the operator of any workplace to provide a safe working environment for workers, should be grounds for any person injured in that workplace as a result of said failure to take civil action against the operator who, by law, should be forced to carry appropriate liability insurance.

    Maybe the hip pocket nerve is what should be targeted for deliberate non compliance.

    The no fault system has issues and individual workers do not have the resources to adequately defend or prosecute against employers in the main and have no hope of understanding the complexities of the system. So we are stuck with the no fault system which, as time goes by, supplies less and less protection for workers as the laws are changed based on actuarial considerations to reduce cost rather than injury reduction initiatives to reduce claim volume and cost.

    In South Australia, the current workers compensation laws are morally bankrupt and our politicians should hang their collective heads in shame.

    A recent multi page actuarial report recently produced by Infinity was big on statistics, costs and how to manage and reduce same, but on close reading, there was not one reference to to injury reduction measures and when you read the figures within the report in relation to legal costs and compare them to any form of cost relating to workplace safety compliance and safety promotion the mind boggles.

  8. Can some one please tell me in words of only one syllable if need be just why if anyone sees something within a workplace that puts the life of themselves or another at risk why they as a OHSW inspector can walk away without reporting or recommending an action?

    I would have thought that an employer would be able to take civil action against the OHSW inspector if no such warning was given.
    I would have thought that the injured worker or in the case of workplace death the familiy of the deceased would be able to take civil action upon learning that an OHSW inspector stood by and did nothing.

    Maybe I do live in WonderLand over the importance of workplace safety, maybe I do live in the false belief that the safety of everyone is paramount.
    Maybe I have been eating too many of Alice\’s magic mushrooms.

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