On 8 February 2010, four workers at Café Vamp, a small restaurant in Melbourne Victoria, were fined a total of $A335,000 for repeatedly bullying, or allowing bullying to occur to, 19-year-old Brodie Panlock. Brodie jumped from a building in September 2006. Her family watched Brodie die from head injuries three days later. They were unaware that Brodie was being bullied at work.
In late November 2009, the Victorian State Emergency Services (SES) was convicted of OHS breaches over the death of one of its volunteers and was fined $A75,000. The SES has chosen to allocate $A150,000 to a review of its safety management after strong criticism from the Mildura Magistrate, Peter Couzens.
In answer to the title of this article, a minimum of $A225,000 and one person’s life.
In May 2007, a volunteer with the SES a, 54-year-old Ron Hopkins drowned on a training exercise in the Murray River. WorkSafe Victoria provides the following scenario:
“A boat took the four volunteers doing the [swimming] test out into the river and they got in to the water but Mr. Hopkins soon got into difficulty.
An oar was extended to him from the safety boat but he soon disappeared below the water.
Despite the efforts of the SES personnel to find him, his body was recovered the next morning by NSW police divers.
WorkSafe’s investigation found the safety boat had life jackets for the two assessors who were in the boat, but there were no other buoyancy devices which could be used in an emergency.
Some other participants involved in the swim test also experienced difficulties in the cold water and after swimming to the centre pylon of the George Chaffey Bridge, they held on to bolt heads extending from a rubber buffer attached to the pylons at water level. They were later picked up by the safety boat.
At the time of Mr Hopkins’ death the SES had no rule against carrying out swim tests in water where there was limited visibility or where a rescue could be difficult to carry out if someone got into trouble.
As a result, lakes and rivers were sometimes used as well as local swimming pools.
At the time of this incident there were a number of swimming pools with the facilities to help anyone one (sic) who got into difficulties in the Mildura area that could have been used for the test.”
Hopkins had been a member of the SES for seven years and had participated in searches associated with drownings previously, according to one AAP report. The SES expressed regret and sympathy at the time of the incident in a media statement. A short report of Hopkins funeral is available online.
As the Murray River runs on the boundary between Victoria and New South Wales a NSW coronial inquest was planned until the Victorian prosecution was announced.
At the committal hearing in June 2009, the magistrate allowed Hopkins’ widow, Meryl, some input in the Court procedures. And in the November 2009 hearing, Mrs Hopkins’ victim impact statement is reported to have said that:
“… since the incident Mrs Hopkins had felt her life had lost meaning and she sometimes wished she had drowned with him. The court heard she had experienced mental and physical health issues, including post traumatic stress, panic attacks, exhaustion and sleep disturbance.”
In 2003/04 Chris Maxwell undertook a review of the Victorian OHS Act and was critical of the special treatment provided to government authorities at that time and advocated that any organisation that breaches OHS law should be treated equally. Maxwell told the Central Safety Group in 2004:
“I have to address a meeting next week of the Heads of Department to talk to them about the chapter entitled “The Public Sector As An Exemplar”. They need it explained a little more fully. It is good that the Public Sector wants to grapple with the issue “what does that mean for us?” It is a theme of the Report that the public sector should be treated exactly the same as the private. It shouldn’t be otherwise but the history of prosecutions tends to make you wonder about that. I know John Merritt, the Executive Director is absolutely committed to that principle. It is interesting to note that the Education Department has recently received an Improvement Notice.”
“I would go further, however, and suggest that government (as employer and duty holder, and as policy maker) can, and should, be an exemplar of OHS best practice. By taking the lead in the systematic management of occupational health and safety, government can influence the behaviour of individuals and firms upon whom duties are imposed by the OHS legislation.”
Today, 1,500 union health and safety representatives attended a one-day seminar in Melbourne concerning occupational health and safety. The seminars were supported by a range of information booths on issues from support on workplace death, legal advice, superannuation and individual union services.
Kevin Jones, the editor of SafetyAtWorkBlog took the opportunity to chat with a couple of people on the booths about OHS generally and what their thoughts were on workplace safety.
The latest SafetyAtWork Podcast includes discussions with the Asbestos Information and Support Services, the AMWU and TWU.
The podcast can be downloaded HERE
There are few motivations that are more effective for improving workplace safety than facing a grieving relative.
On 17 September 2009, the impact of the OHS law harmonisation on workers and their families came to the fore in an article in the Sydney Morning Herald (SMH) entitled “Deaths at work put sharper focus on liability”. The workplace support advocates make a clear case for holding those who control the workplace accountable for injuries, illnesses and fatalities that occur in their businesses.
A letter sent to the Federal Minister for Workplace Relations, Julia Gillard, by the Workplace Tragedy Family Support Group reportedly says
”Dealing with a serious injury or the death of a family member is difficult, particularly if there is no sense of justice. Employees must be able to seek justice against employers who do the wrong thing,” said the conveners’ letter.
Families wanted to know the responsible organisation had been held to account, the letter said.
Justice, but not revenge. The avoidance of this justice and accountability through companies choosing to go out of business has been highlighted in New South Wales many times, so it is understandable that the reduction of the avenue to pursue justice that may occur in the OHS harmonisation process can generate such letters to politicians.
A significant element in the SMH article is the inclusion of the union perspective. Trade unions often provide grieving relatives the only support, particularly in the period shortly after a workplace fatality. And there is the shared grief of losing a loved one and losing an often long-serving union member.
This article and the letter to the Minister add an important emotional and social element to the development of the new national model OHS laws. Whether the government will incorporate mechanisms to achieve justice in the legislative framework or in secondary processes could give a good indication to the broader political picture of workplace safety over the next decade.
The city in which SafetyAtWorkBlog is edited, Melbourne, is struggling to manage a spate of street violence – some racially-based, a lot influenced by alcohol and drugs. The Age newspaper carried a feature article on 25 August 2009 discussing the concept of “restorative justice”, a concept that is barely known outside of some legal or civil liberties areas, in relation to handling offenders and victims of street violence.
Only last week, there was an important launch of a research report into the application of restorative justice for those affected by workplace fatalities. It is a fascinating new area of application for restorative justice in Australia and one that seems a more natural fit than for the more common acts of violence.
The research project builds on a lot of the work already undertaken into workplace fatalities by the Creative Ministries Network. Their research, mentioned in the project report, has shown
“…that families and company directors, managers and workers grieving a traumatic death suffer more prolonged and complicated grief due to delays in legal proceedings, public disclosure of personal information, lack of information, and increased stress from involvement in the prosecution process and coronial and other litigated processes.”
Over the next few days SafetyAtWorkBlog will run a series of articles on the concept and its application as well as being able to make available copies of the research reports and transcripts of interviews with research participants.
As SafetyAtWorkBlog has no legal expertise restorative justice needed some investigation. Below are some useful definitions and descriptions:
“Restorative justice is a theory of justice that relies on reconciliation rather than punishment. The theory relies on the idea that a well-functioning society operates with a balance of rights and responsibilities. When an incident occurs which upsets that balance, methods must be found to restore the balance, so that members of the community, the victim, and offender, can come to terms with the incident and carry on with their lives.”
“Restorative justice brings victims, offenders and communities together to decide on a response to a particular crime. It’s about putting victims’ needs at the centre of the criminal justice system and finding positive solutions to crime by encouraging offenders to face up to their actions.”
“The term “restorative justice” is often used to describe many different practices that occur at various stages of the criminal justice system including:
- Diversion from court prosecution (i.e. to a separate process for determining justice);
- Actions taken in parallel with court decisions (e.g. referral to health, education and employment assessment, etc.); and
- Meetings between victims and offenders at any stage of the criminal process (e.g. arrest, pres-sentence and prison release.”
[Of course, one can also read the Wikipedia entry)
The intention of restorative justice has more often been to reduce the likelihood of a re-offence. The application of restorative justice for workplace fatalities seems to be slightly different. In America, it would be difficult to avoid using the word “closure” (a phrase SafetyAtWorkBlog refuses to use as there is never a close to grief, only a way of living with it) as one of the aims of the workplace fatality application.
There are many effects of a workplace fatality on executives and companies. It is hard to imagine a company that, after one fatality, would not do all it could to avoid another. Restorative justice has the potential to heal the surviving victims – family and company. It can also reduce the animosity that often results from the traditional adversarial justice system, particularly for those participants who may not have been exposed to such processes before.
According to a Reuters report available on-line on 20 August 2009:
“The former manager of a Buenos Aires nightclub has been sentenced to 20 years in jail over a fire that killed 194 people, the deadliest blaze in Argentine history.
The court’s decision at the end of a year-long trial was met with spontaneous outbursts of violence among relatives of the victims, with police using water cannons to disperse rioters.”
One of the most popular blog articles at SafetyAtWorkBlog over the last month – the Santika fire article – provides a useful contrast to the Buenos Aires prosecution and some practical risk control measures.
The Rural Health Education Foundation (RHEF) produced a DVD recently as part of its professional development program on managing trauma. It is an introduction for rural medical practitioners on how to identify trauma and how to advise on management. The video was produced in conjunction with the Australian Centre for Posttraumatic Mental Health and is unavailable at the moment due to a lack of funding. However, the video, and others, are available online through a free registration at the RHEF website.
Health and safety practitioners rarely prepare themselves adequately for handling a traumatized worker whether it is from a work experience or an issue outside the workplace. OHS practitioners often have a linear perspective where an incident occurs, the personal damage is handled or referred on and the avoidance of recurrence is prevented.
The cycle of incident, rehabilitation and reintegration to the workplace is not widely understood in the OHS field. The “Recovery From Trauma: What Works” video illustrates the personal and psychological cost of an incident. Through a case study it also shows the early signs of trauma, when a worker may “not be himself” – the clues to a possible bigger problem. One case study, John, specifically includes the impact of his situation on his work performance.
In the early stages of trauma, around a week after an incident, the video advises that people avoid
If the worker is out of sorts for longer than a week, professional assistance should be sought.
The video was broadcast in February 2009 so the information is current.
The program continues with issues of post-traumatic stress disorder with additional case studies including a policeman talking about his counseling and the therapy he undertook after a traumatic event.
RHEF does not try to do everything by itself and draws upon subject matter experts on trauma and recovery. The video is a very professional production and RHEF should be supported in its initiatives. Readers are encouraged to watch the videos online and, if you can, consider supporting RHEF financially so that these important resources can be made available to medical professionals throughout Australia.