Keeping injured workers in the loop
In the Jan/Feb edition of Safeguard magazine, injured worker Ceryse Rawson says she felt excluded from the lengthy legal process of investigation and court proceedings. (The story is
How best to ensure injured workers are properly aware of each stage and feel their voice can be heard?
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Is it the employers job / responsibility to ensure an injured worker is aware of each legal stage and ensure their voice is heard.
For a start I would imagine the injured person has to be part of the event investigation. That's a very good opportunity for a voice to be heard.
From there, information gained by the employer would be passed to Legal, at which time it would become privileged.
And once the matter was before the courts there are limitations on what information can be passed / commented on. Especially as it is likely the injured will be a witness for the prosecution.
If a person is involved in a legal process I would have thought it was incumbent on them to get their own independent legal advice - and this advice would include what each stage was and what to expect.
To give some richer context to this question, here FYI is a story we published in Safeguard Update in March 2018 on Australian research (with NZ input) into exactly this question.
Those left behind
A survey of more than 200 family members of people killed at work has revealed deep frustration over how the criminal justice system responds and has identified a number of key factors which would improve the experience for those left behind.
Dr Lynda Matthews from the University of Sydney told a conference at AUT that families are left “incredibly isolated” by the system of regulatory investigation and coronial enquiries following a workplace death.
The study was carried out in three phases, starting with 48 interviews with unions, lawyers and government agencies in Australia. Then came a survey of 212 families from around the world, two-thirds from Australia with others from Canada, the USA, the UK, New Zealand and Singapore. The average time since the death of a loved one was just over seven years, and 89% of respondents were female: partners and parents.
The health of respondents had been badly affected by the death of their loved one, including mental health conditions such as PTSD, depression, grief disorder, mood swings and anxiety. Guilt was frequently cited.
“Most said their partner had talked about concerns at work but they had done nothing," said Matthews.
Then came the frustrations of dealing with investigations by police and H&S inspectors, prosecutions through the courts, workers compensation claims, common law claims, and coronial enquiries. Respondents felt they rarely had input into these processes, and reported it took vigilance for up to ten years to keep track of what was going on. “I am just this lone voice in the wilderness,” reported one respondent, who Matthews said characterised all respondents “to a T”.
Respondents attributed their declining health to a number of factors besides the shock of a sudden death: the bureaucracy of the formal processes, the lack of timely information, their lack of opportunity for input, and the sheer length of proceedings.
“They have no power, no input, no legal right to be anywhere. They are suspicious and they trust nobody. It’s a long time to keep on your guard.”
The researchers identified a number of common needs of any family faced with a sudden workplace death:
To receive timely and accurate information all through the process;
To participate in the process to ensure their voice is heard;
To know that a thorough investigation was done so the how and why is answered;
To know that someone or something was held accountable so justice is seen to be done;
To know that actions have been taken to prevent similar future deaths; and
To receive adequate emotional and financial support as acknowledgment that the death has significant long-term effects on those left behind.
Long time H&S researcher Michael Quinlan, who was also involved in the study, told delegates the question was: how should the criminal justice system respond?
“It’s not just about punishment and deterrence, it’s about the community asserting that people’s lives at work matter.”
Referencing the Pike River mine disaster, he argued there is a public interest to demonstrate the system cares enough to run a prosecution, even if the outcome is not certain. And if a death does not result in a prosecution, it requires coroners who know about H&S and know what kind of questions to ask.
“I have never seen it asked: how is the legal system working for the families? People get a sense when they are being conned. The families believe the criminal justice system doesn’t accord workplace deaths due significance.”
I have shared the link for this discussion with my friend Joerg Schmidt-Hilger, who lives in Pinneberg, about 40km from Hamburg. Joerg's son Malte was barely 21 when a completely preventable workplace accident resulted in a fatal head injury.
I am hoping he will visit the forum and share his own perspectives - not only the profound effect on his home, family, and community, but also the ongoing frustrations Joerg and his wife Christina face in trying to hold the employer appropriately accountable for the poor safety management practices that led to the incident. The forklift driver whose actions led directly to the incident has been fined, but the bereaved parents recognise that it is actually the employer who was at fault for not providing safety management processes for a safe workplace. The company has refused to communicate with them and has been completely unsupportive of their needs, while the German government is unable to enforce any actions or even an appropriate investigation. After more than two years of campaigning, the German regulators have FINALLY agreed to conduct and investigation.
Determined that their loss should not be repeated in other families, Joerg and Christina have been actively reaching out to other parents whose children have died in workplace incidents, aiming to work together to put pressure on the German government to do more to protect workers as well as ensuring when a fatality occurs that the incident is thoroughly investigated so the family can understand what happened, and that employers treat families with appropriate dignity and respect.
Articles from the local news about dealing with their court experiences attached - unfortunately only in German. These only inform about the public, legal process, not the private pain and loss.
FYI - here is the article I wrote last year on what would have been Malte's 23rd birthday.
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