Are you having the conversation?
OHS systems are more than just policies and procedures. They include talking to your employees, having toolbox meetings and following up on compliance.
I often receive calls from farmers who say that they have implemented a policy or procedure and their employee isn’t following it so can they terminate their employment. Generally speaking, the answer is NO (unless the incident is a “summary offence” which includes serious misconduct such as theft, fraud, assault and being intoxicated at work. Allegations of theft, fraud or violence should be reported to the police. Refer to The People In Dairy website for further information on Summary Dismissal).
Prior to dismissing an employee for not following a policy or procedure, the following questions need to be asked:
- Was the employee clearly advised of the new procedure?
- Are there records of when this occurred (e.g. minutes of a toolbox meeting where the procedure was introduced and discussed)?
- Has there been a discussion with the employee to ensure that the procedure has actually been read/watched and understood (i.e. be aware of and take into account literacy and language concerns)?
- Has the procedure been signed off by the employee and has a record of this been kept?
- Is the procedure readily available to the employee?
- Is the workplace set up so that the procedure can be implemented (i.e. if the procedure states that employees must wear PPE, is PPE always clean, useable and readily available? Have employees been show how to correctly use the PPE?)?
- Is there a system to ensure that the procedure is implemented and followed (i.e. monitoring, incident reporting and performance counselling and management)?
- Is corrective action taken when a procedure is not followed? Does the corrective action follow a stepped procedure (i.e. performance counselling and management)? Is a record of corrective action maintained and followed up? Is the employee aware of the corrective action process and consequences?
- Has non-compliance by other employees been overlooked?
The following example from Work Safe Queensland is from May 2021, where a company was fined following a fatality because a procedure was inadequately implemented. Note that the significance of the fine was due to a fatality. Although the incident was in the horticulture industry, the principles are applicable to any industry.
Fatal dismount from moving tractor leads to $150,000 fine
A North Queensland produce company was recently fined $150,000 in the Bowen Magistrates Court over the death of a 37-year-old worker who was crushed when he dismounted from a moving tractor.
The court heard that in March 2019, the deceased was driving six workers slowly around the paddock as they planted capsicum seedlings while seated in plastic seats in the planter attached to the tractor.
The worker was previously seen dismounting the moving tractor to restock the seedling trays and a short time later the planting crew heard a cry for help. He was found under the wheel of the planter and was later declared deceased from heart and chest injuries.
He had worked for the organisation for nine years and dismounting from the moving tractor was common practice until around mid-2018 when the defendant introduced a policy prohibiting it. The policy included the statement ‘never get off a moving tractor’.
Records indicated that the deceased had signed a document confirming he took part in the safety induction only a month earlier but continued to dismount and was reprimanded for it three times before his death.
Upon sentencing, Magistrate James Morton took into account the defendant’s plea of guilty, noting that the defendant had put in place policies and procedures for the safety of workers, however, in this instance, they were clearly aware that this particular policy was not being followed nor enforced.
The magistrate said the incident was tragic and that the family owned company had worked closely with the man for nine years. The incident could have been avoided had the defendant been more forceful in his approach to enforcing the policy.
He commented that the consequences of the risk were clearly severe, the probability of the risk was very real and the additional steps that could have been taken to avoid the incident were not burdensome or inconvenient.
The company was fined $150,000 plus court costs. No conviction was recorded.
Whilst the above points may feel like a lot to implement, once there is a system in place, it can be used for all policies and procedures.
For further assistance, please contact Sarah Cornell on 0437 400 316 or firstname.lastname@example.org Work Safe www.worksafe.vic.gov.au or your Farm Consultant.