Investigating Workplace Incidents: 9 Common Traps to Avoid

Like most safety coordinators, you fully understand the importance of investigating workplace incidents thoroughly and accurately. But you might still make critical mistakes when you conduct incident investigations. There are some common traps that safety coordinators and companies fall into when they investigate workplace incidents. Even companies with highly developed safety programs and seasoned safety coordinators fall into these traps. In fact, chances are that you have fallen into one or more of these traps yourself. With the help of experts, we’ll tell you what the 9 common incident investigation traps are and what you can do to avoid them. Trap #1: Not Notifying & Involving All Relevant Parties Trap: Incident investigations are largely designed to be a collaborative effort in which different individuals and groups from inside (and, in many cases, outside) the company play a key role. All of these parties need to be mobilized after the incident occurs so they can get organized and participate in the investigation. But in the stress and chaos that often follow a workplace incident, companies sometimes fail to notify everyone they should. Thus, they inadvertently exclude parties that should be participating in the investigation and thereby undermine its effectiveness. To make matters worse, failing to report incidents to the right parties may violate OHS and workers’ comp laws. Solution: Make sure you notify two categories of groups/individuals about any incidents that take place, advises Ontario OHS consultant Yvonne O’Reilly: Internal: There are parties within the company who should be notified about any incidents. Exactly who those parties are depends on the company’s corporate structure, notes O’Reilly. But they typically include:

• The company’s safety coordinator;
• The supervisor of the worker who was involved in the incident and/or who was overseeing the area of the workplace in which it took place;
• The joint health and safety committee or health and safety representative;
• An appropriate person in senior management; and
• The company’s lawyer.

External: You may also have to report workplace incidents to parties outside the company, says O’Reilly. First and foremost, there’s a legal obligation to report certain incidents to two sets of regulatory authorities: the provincial workers’ comp board and the OHS authority. Specific notification requirements—such as which incidents must be reported, what information must be reported and when—vary depending on which province you’re in and whether the particular report is required under workers’ comp or OHS laws. But in general, reporting is required for incidents involving serious injuries and fatalities. POINTER: You may also need to notify the labour union and let a union representative participate in the investigation if such participation is required by the terms of your collective agreement. For example, a railway company was dragged before an arbitrator and scolded for waiting until the next scheduled JHSC meeting—long after the incident investigation was over—to notify the union of a mechanic’s back injury [Canadian National Railways Company v. National Automobile, Aerospace Transportation and General Workers Union of Canada, Local 100]. Trap #2: Not Seeking Immediate and Appropriate Legal Advice Trap: What you do and don’t do right after an incident have a major impact on your legal rights and risk of being held liable for an offence in connection with the incident. But many companies don’t get the legal advice they need until after they’ve made legal mistakes that can’t be reversed, says Jeff Short, an incident investigation consultant based in Edmonton. Solution: When serious incidents take place at your workplace, talk to a lawyer immediately. What’s the hurry? You need the right legal advice to guide your investigation and your interaction with government officials and investigators. The lawyer may also hire an outside consultant such as Short, to conduct the investigation so you can keep the investigation’s findings privileged and not have to divulge them to the government. And don’t consult just any lawyer; you need to talk to a lawyer who’s well versed in OHS laws. More often than not, a company’s in-house counsel lacks the OHS expertise you need to safeguard your rights, advises Short. Trap #3: Waiting Too Long to Start an Investigation Trap: Starting the investigation as soon after the incident occurs as possible is often crucial. In some cases, waiting even just a couple of hours can compromise the integrity of the incident scene and the evidence it contains. But Short says that companies often wait too long to start investigating a workplace incident. A common mistake is to wait until you know how serious the worker’s injuries are before starting the investigation, he says. Solution: Short suggests that you start your investigation immediately. If delay is unavoidable, at a minimum, secure the scene to protect the evidence. The other immediate action you must take is to identify all potential witnesses before they leave the scene. Trap #4: Assuming the Government Will Conduct the Investigation for You Trap: If the government is doing its own investigation of the incident, it’s not doing the investigation for you—it may be doing it to you, Short cautions. The government investigators’ goals aren’t the same as yours. They’re likely to include determining if you were in compliance with the laws and gathering evidence to use in a prosecution against you if they think you weren’t. In contrast, your goals are—or at least should be—to identify any problems in your safety program that caused the incident and make corrections to prevent future incidents. Also, your investigation will help gather evidence to support your company in the event it’s charged with an OHS violation as a result of the incident, he adds. So it’s likely that your investigation will be broader than the government’s investigation. Solution: Always conduct your own incident investigations even if the government is investigating the incident too. Short says the company’s investigation  should  “mirror” the government investigation, but protect the company’s interests. Trap #5: Disturbing the Scene Trap: When there’s been an incident, it’s tempting to clean up the scene and get operations back to normal as soon as possible. But OHS laws require you to preserve the scene of an incident so that it can be investigated. You also want to preserve the scene for your internal investigation. So jumping the gun on a cleanup undermines your own investigation and could result in liability for obstruction. Solution: In general, you can only disturb the scene of an incident if directed to do so by a government official or if it’s necessary to attend to injured workers, prevent further injuries or protect property that’s endangered because of the incident. For example, if an explosion has made a stack of material in the scene unstable, you may secure the material so it doesn’t fall and cause further injuries. Example: A waitress at an Ontario restaurant fractured her leg after slipping and falling while carrying a tray full of food. It was the middle of the lunch rush, so the manager ordered the mess cleaned up right away and didn’t report it to the MOL. The MOL learned about the incident a couple of days later. But since the evidence had long since been removed, it couldn’t investigate. The restaurant was convicted of failing to preserve the incident scene and failing to report the incident to the MOL. It was fined $20,000 for each charge [R. v. Famz Foods Ltd.]. Trap #6: Failing to Secure the Scene Trap: Disturbing the scene of an incident is an obvious violation of the duty to preserve the scene of an incident. But not securing the scene is just as bad. While evidence from witnesses is important, physical evidence may be even more valuable. And by failing to secure the scene, you’re may be allowing key physical evidence to be destroyed. Solution: Secure the scene as soon as possible after an incident occurs to prevent people from walking through the scene or weather from compromising it. Securing the scene can be as simple as closing the door to the room where the incident happened or cordoning off the surrounding area with “caution” tape, says O’Reilly. And if the incident happened outside, throwing tarps over the scene can help protect it from the elements. POINTER: O’Reilly says it’s a good idea to have a kit ready that includes items like caution tape, a camera, etc. Trap #7: Failing to Thoroughly Document the Scene Trap: Once investigators arrive on the scene, their job is to make observations about crucial details from which they can piece together what happened, such as the position of the equipment after the incident, the weather conditions, the exact time of the incident, etc. O’Reilly says that companies often fail to gather enough of these crucial details when doing their own investigations. Or they make the right observations, but fail to document them. Consequently, they lack the critical information necessary to conduct a comprehensive and reliable analysis of the incident. Solution: Remember that the incident scene is a fading snapshot. You get one chance to look it over before it disappears for good. So thoroughly document the scene. Take photographs, sketches, notes, etc. And cover every detail on the scene because it’s not always immediately apparent which details might prove to be crucial later on, notes O’Reilly. Trap #8: Not Interviewing All the Right People Trap: So far, we’ve been talking mostly about physical evidence. But there’s another category of evidence that’s just as important: the observations of the people who witnessed or were involved in the incident. Most companies know enough to interview the “witnesses” to an incident—that is, the people who saw or heard what happened, says O’Reilly. But there are other key people with relevant and often critical information that they fail to interview, she notes. Solution: Interview not only anyone who witnessed the incident but also those who have knowledge of the equipment, people, processes, etc. involved but who weren’t there when the incident occurred, suggests O’Reilly. For example, speak to the workers from the prior shift who used the equipment or machinery involved in the incident to see if they had any problems using it. Also, speak to the workers who maintain the equipment or machinery. Think broadly, she advises. Speak to people outside the company, such as the manufacturer of any equipment or machinery involved to see if that equipment or machinery has been involved in similar incidents. Trap #9: Failing to Gather All Relevant Documents Trap: In addition to physical evidence and testimony, you need to gather any relevant documents that could help explain why the incident happened. Unfortunately, investigators sometimes overlook the importance of these materials and fail to gather them. Solution: O’Reilly suggests that, at a minimum, companies gather the following documents after a workplace incident:

• Maintenance records for equipment or machinery involved in incident, which could show prior problems;
• Manuals for equipment or machinery involved in the incident, which can be used to determine whether the equipment or machinery was being used properly;
• Training records of workers involved in the incident, which will show whether the workers were properly trained;
• Inspection records to show that, say, workers had been wearing their PPE;
• Disciplinary records of workers involved in the incident, which may show that, say, the worker was previously disciplined for conduct that figured in the incident, such as failing to wear personal protective equipment; and
• JHSC minutes and inspection reports.

Conclusion A half-assed investigation may be just as bad—if not worse—than not investigating an incident at all. Mistakes made during an investigation can compromise the conclusions you draw from it and thereby prevent you from making the necessary corrections to prevent similar incidents in the future. Some mistakes, such as disturbing the scene of an incident or failing to document efforts made to prevent similar incidents, can even lead to OHS violations and fines. And as your company’s safety coordinator, you should be involved in all incident investigations and ensure that such investigations are conducted properly and thoroughly.