Restorative Justice and workplace fatalities – Part 1

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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.

Pages from RJ_and_Work-Related_Death_Consultation_ReportOnly 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.

Kevin Jones

Peanut allergy fatality saga to continue

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Safety management in the education sector seems to be one of the hardest management challenges.  There are overlapping safety obligations through OHS legislation, education department guidelines, public health matters and meeting the demands of parents and students.

700 Peanuts - Federal Court coverA decision in the Federal Court of Australia on 30 June 2009 illustrates the challenges.

A 13 year old boy from Scotch College, in Melbourne, Nathan Francis, died after eating from a ration pack of beef satay on a Defence Forces camp.  The school, which was supervising the camp, were aware of the boy’s severe allergy to peanuts.

The Australian Department of Defence was fined over $A200,000.

The full judgement of the court raises several  issues that are relevant to the management of safety of people in one’s care.  The judge has recommended a State coronial inquest to determine the roles and responsibilities of Scotch College in Nathan’s death.

Justice for Nathan and his family is likely to have many more months to go. [ SafetyAtWorkBlog will follow the issue.]

A fantastic audio report on the decision is available at the ABC website. The payment of the fine back to the government is not dealt with in this blog.

The first section of the judgement (below) indicates what the judge believes are the failures that need to be addressed through an appropriate safety process:

  • Communication;
  • Instruction;
  • Provision of appropriate supplies;
  • The importance of labelling; and
  • Following procedures and guidelines

Some readers may find that this prosecution could make an interesting case study for safety management.

Kevin Jones

Justice North found that the Federal OHS Act was breached by the Commonwealth government through the Chief of Army.  The respondent

(a) supplied Cadet Nathan Fazal Francis, Cadet Nivae Anandaganeshan and Cadet Gene van den Broek with one-man combat ration packs (CRP’s) containing a satay beef food pouch which contained peanuts or peanut protein for their consumption despite having been informed that the said cadets were allergic to peanuts;
and, in so doing, it failed to:

(b) warn parents of the [Australian Army Cadets] AAC cadets about the contents of the CRP’s;

(c) warn AAC cadets about the contents of CRP’s;

(d) warn AAC cadets with pre-existing food allergies of the contents of CRP’s;

(e) make appropriate use of information provided by AAC cadets and parents of AAC cadets regarding pre-existing or known allergic conditions and correlate that information with the potential risk of being exposed to allergies through the supply of food contained in CRP’s;

(f) ensure that the contents of CRP’s allocated to AAC cadets did not include food products or allergens that may have triggered allergic responses by removing or requiring the removal of peanut-based food products from CRP’s;

(g) prevent distribution or provision of peanut-based food products to AAC cadets with pre-existing allergic reactions by:

i. inspecting the contents of CRP’s to be allocated to those individual AAC cadets who had given notice of allergic conditions;

ii. isolating cadets with pre-existing medical conditions and/or notified food allergies at the time of distribution of CRP’s and issuing them with CRP’s that did not contain peanut products or other food allergens;

iii. removing all CRP’s known to contain peanut protein or other food allergens from circulation amongst AAC cadets;

iv. requiring all AAC cadets with notified allergic conditions to provide their own food supplies;

(h) issue any or any adequate instructions or provide adequate supervision regarding distribution of CRP’s;

(i) issue any adequate instructions or provide adequate supervision regarding consumption of contents of CRP’s;

(j) prevent the consumption of CRP’s containing food allergens by AAC cadets with food allergies;

(k) distribute CRP’s after consulting or considering pre-existing medical conditions; and

(l) take into consideration the findings of a report dated 22 November 1996 by the Australian National Audit Office entitled ‘Management of Food Provisioning in the Australian Defence Force’.

Beaconsfield Coronial Inquest Walkout

On 22 July 2008 the Tasmanian Coroner continued with his inquest into the death of Larry Knight at the Beaconsfield mine on 25 April 2006. Shortly after the start the legal team representing the mine walked out. Newspaper, radio and TV have covered this extraordinary development. Other reports in SafetyAtWorkBlog told of the lawyers’ attempts…

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Beaconsfield Mine Inquest

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An article in today’s Australian newspaper reports on the coroner’s inquest into the death of Larry Knight in the Beaconsfield mine in 2006. It provides the first insight into the OHS report for the Melick investigation.

In October 2005, six months before Larry Knight’s death, the mine was closed after a minor rockfall. It is reported that mine management only allowed workers back into the mine after geotechnical advice.

Professor Michael Quinlan of the University of New South Wales wrote that, from an OHS perspective, this was a poor decision. Whether financial pressures were behind the permission to reenter the mine is under dispute.

Counsel for the mining company, Stephen Russell has

urged the court to exclude Professor Quinlan’s evidence because the University of NSW professor was not expert in geotechnical issues.

Valid point, perhaps, except that the coroners need to investigate deaths from a broad pool of opinion and expertise. I suspect that Michael Quinlan would be the first to admit he is not an expert on geotechnical matters.

It seems from the media report that the counsel for the mine believes that, even though an assessment would involve worker activity in a workplace, occupational health and safety considerations were not necessary at the time.

In an earlier report in the Mercury newspaper, counsel assisting the Coroner, Michael O’Farrell

argued against an earlier move by the mine’s lawyers to confine the inquest to seismic event on the day of the rockfall.
Mr O’Farrell told Launceston’s Supreme Court that attempts to contain the inquiry to a close examination of the geotechnical issues surrounding the collapse did not serve justice, and may lead to error.
He urged Coroner Rod Chandler to consider all types of evidence, “even red herrings”, in order to make the recommendations necessary to prevent similar mine deaths.
The inquest should also focus the mine’s safety processes and risk assessment procedures, as well the capacity of the state government’s workplace standards body, Mr O’Farrell said.

I have stressed elsewhere that I have no problem with companies deciding to do nothing after a risk assessment is undertaken. It is the right of the employer to accept or reject OHS advice. But what I object to is if a company then tries to avoid responsibility for that decision if it turns out to be a poor one.

The mine’s senior counsel, David Neal SC, then asked the Coroner, Rod Chandler, to review the cost-benefit of a detailed investigation into Larry King’s death as the proceedings are costing each party $20,000 per day.

David Neal, also requested 28 witnesses identified by the opposing counsel be excluded. I don’t think that relatives of dead workers would see these costs as an impediment to determining the cause of a loved one’s death. I find it extraordinary that such a suggestion would be made at all.