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Disciplinary action for safety breaches: Stifling trust or legal risk management?

I believe that in most cases there is a reasonable synergy between general legal principles underpinning health and safety legislation and good safety practice. In other words, compliance with the general duty provisions of health and safety legislation can lead to, or is at least consistent with, good health and safety outcomes.

There are areas where legal risk management and health and safety risk management do depart, for example incident investigations. A good "safety" incident investigation should make your lawyer nervous.

A more problematic area in the era of "no blame" and learning teams is the notion of disciplinary action for safety breaches.

It is clear from a legal risk management perspective that employers are expected to take disciplinary action against employees who do not comply with health and safety requirements as part of demonstrating they are doing everything reasonably practicable.

A recent Queensland decision dealt with the death of a worker who was killed stepping of a moving tractor in breach of the employer's safety rules (see safety alert).

While the employer's records showed the worker took part in a safety induction addressing the issue, he continued to climb down from moving tractors and was reprimanded for this on three occasions. The Magistrate found that while the employer had implemented safety policies and procedures to protect its workers, it was aware that the tractor policy was not being followed or enforced, and could have prevented the fatality through stronger enforcement practices.

Balancing the safety imperative to ensure workers are comfortable to speak up around health and safety concerns against the need to use disciplinary action as part of an overall enforcement an implementation strategy is a difficult equation. It seems to be another area where heath and safety research, and perhaps a lack of consensus about what "works" for safety, has been unable to influence safety policy at the higher, legislative level.

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