How many times have you watched shows like the CSI series, Law and Order, Bones, Numb3rs or even television’s most lovable serial killer show, Dexter and seen squads of individuals descending on a crime scene attempting to expose the most minute evidence in order to understand what happened? Does your corporation’s incident investigations mirror these performances? If they don’t — they should.This is not to say that your incident investigation process should involve dusting for finger prints next time someone gets a paper cut. The extent of your incident investigation process should depend on the outcome or potential outcome of the incident. If, for example, your project suffers a serious injury to a worker, major property loss or death, your incident investigation process should be as detailed in identifying potentially relevant evidence and as meticulous in collecting that evidence, as anything seen on TV.
The ultimate purpose of incident investigation and analysis is to prevent future incidents; although, in a serious incident, major property loss or death, the company AND individuals will have to consider the possibility of future charges.
There are far too many investigations where the focus is on fault-finding. Although this approach helps generate policies and procedures that may prevent future occurrences, it will not be very helpful in defending your company or yourself against charges.
Rather than focusing on fault, find the facts. This sounds easy but as the old adage goes, “the devil is in the details”. Detailed facts in your investigations should be your motto. Whether determining the cause of the incident to prevent future occurrences, or defending future charges, everything stems from the quality of your original investigation and the detailed facts it reveals.
One of the most common mistakes you can make is to assume, jump to conclusions or speculate — try not to do it, no matter how tempting it is. To do so is to risk missing an important fact.
Case in point: McLennan Ross LLP assisted a large company with their investigation where a worker was seriously injured and hospitalized, but fortunately fully recovered in the end. Overall, the corporation had a very good OHS program and investigation process. However, on closer analysis there appeared to be a significant flaw in the training records of the corporation.
In response to a question regarding the worker’s training on the specific piece of equipment that had injured him, the corporation produced an impressively large computer printout showing courses the injured worker had attended in his 16 years of employment. This would appear to show well over 50 courses the worker had attended during his tenure.
The computer printout contained the worker’s name on the top of the sheet, a title explaining what the sheet was — “Training Record for Worker X” — the date in which the sheet was printed, the name of the courses the worker attended, and when the worker attended them. This training sheet had been produced during the corporation’s investigation and showed that the worker was trained on that equipment approximately five and 10 years prior to the incident. At this point the corporation’s investigation process concluded that the worker was competent based on their training records and they continued on with other aspect their investigation.
The problem was, if charges were laid and this issue went to court, the training record sheet would not be adequate proof to support the conclusion that the worker was competent on that piece of equipment. The courts require more than a simple list of courses attended by workers.
The defending corporation or individual must prove that the injured worker actually attended the course — did he sign an attendance sheet? In addition, it would be necessary to show the specific knowledge the worker gained by attending the course — a copy of the training material the worker would have received from the time the course was offered should be produced. Finally, there should be proof that the worker was ultimately competent in the training they received — What if the worker slept their way through the course? The worker might have attended the training course but it does not mean he learned anything.
At the end of the day, having expended lots of resources, the corporation struggled to produce these records and ultimately only produced a portion of the records requested. In addition, the records that were produced had many flaws — missing signatures, wrong versions of the training records, paragraphs scratched out, wrong answers or simply a blank sheet with the worker’s name typed on it.
These are the types of detailed facts required in today’s investigations, especially if several years pass before the regulatory prosecutions department decides to press charges, and then the matter goes to trial. It doesn’t matter who your favourite crime scene investigator is — Grissom, Lupo, Booth or Sinclair — you need to ensure that you follow their example and perform your investigation with the same methodical, almost calculated, accuracy.
Now ask yourself are your incident investigations TV-worthy?
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Shilo Neveu is an associate at McLennan Ross’s Edmonton office and is one of only three practicing lawyers in Canada to hold a Canadian Registered Safety Professional designation. Since joining McLennan Ross Shilo has performed in-depth due diligence analysis for accident investigations and coached employers struggling with the management of workplace accidents.
