The requirements for incident investigation have changed significantly in British Columbia over the past two years. Nancy Harwood, lawyer and owner of the Harwood Safety Group, explained the changes in a session at the Western Conference on Safety in Vancouver on Monday.
In light of Gordon Macatee’s recommendations following the 2012 Babine Forest Products and Lakeland Mills sawmill tragedies in the province, the government revamped its expectations of employers following a significant workplace incident.
Under the new requirements, employers must complete a preliminary report in 48 hour after the incident. The employer needs to identify any unsafe conditions, acts or procedures that may have contributed to the incident. The report must be given to the joint health and safety committee (JHSC). No matter the type of incident, whether it be a fatality or serious injury, major structural damage, major release of hazardous substance, potential for serious injury (near miss) or injury requiring medical treatment, a preliminary report is needed (and a full investigation). As of Jan. 1, a fire or explosion that had the potential for causing serous injury has been added to that list, said Harwood.
The Vancouver-based lawyer also reminded the delegates that if there is a fatality, serious injury, major structural damage or major release of hazardous substance, WorkSafeBC must be notified immediately.
The new legislation is very prescriptive on what exactly the preliminary report must entail, said Harwood. Some examples include witnesses to the incident, the sequence of events that preceded the incident and circumstances of the incident that preclude the employer from addressing a particular element.
Interim corrective action must be taken as well, such as full or partial shutdown of a work site, removing equipment or reassigning workers.
“You might decommission any of those units on any of your other sites, you’re doing hazard alerts for your workers, you’re making sure everyone knows what happened and that they are not to use these, whatever else you may think of in terms of interim corrective action because you don’t really know the full extent of what’s happened yet,” said Harwood.
A report on the interim corrective action must be produced that includes the names and titles of the people responsible for implementing the actions.
The next step is a full investigation, which the employer must embark upon immediately after the preliminary investigation. A report of this full investigation must be submitted to WorkSafeBC and the JHSC within 30 days of the incident.
“You’re going to continue to identify unsafe acts or conditions but, more importantly, now you’ll be looking at the causes,” said Harwood. “Look for the underlying causes, dig deeper. You’re going to start hiring experts, you may have the equipment looked at, you’re going to be interviewing a lot of witnesses and you’re going to try and determine the sequence of events and what can be done to take corrective action.”
Once corrective action is taken to prevent the recurrence of similar incidents, a report must be produced on that as well and it has to be submitted to the JHSC.
There are also changes to how WorkSafeBC conducts its investigations following a serious incident or fatality. Where there used to be only two teams of officers that would appear at a workplace, now there are three, said Harwood. The first team is made up of safety officers that attend a site immediately following a serious incident, the second is a team that investigates and determines cause and the third new team attends to gather evidence for possible prosecution. The third team would be on site in the case of very serious injuries and fatalities.
This “for prosecution” team would not have any access to the evidence uncovered by the previous teams. It needs to completely start over and evidence cannot be seized without a search warrant.
These WorkSafeBC officers work closely with the police who would stay on scene.
“You need to, at this point, be very aware of your rights and responsibilities and be cautious about what the consequences are of this kind of investigation,” said Harwood. “If an officer gives you a Charter warning — you have the right to legal council etcetera — then you know you are in a ‘for prosecution’ investigation.”
At this stage, causation is still a key consideration but the officers and the police are looking for fault, whether it’s the employer, workers, supervisors or directors. This would be a good time to involve legal counsel, advised Harwood.
Aside from a lawyer, employers should have other experts on their team in the event they are subject to a “for prosecution” investigation. The team should include someone in leadership with the power to make decisions on the fly, the health and safety manager, engineers, specialized OHS experts and external investigation advisors, said Harwood.
“Identify these people now, have them on call, say, ‘If this should ever happen, will you be the person I can call?’”
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