It has been reported that the Acting Commissioner of the NSW has sent a message to members reporting on a serious incident.  In that notice he says (emphasis added):

… Last night, a member was on a roof responding to a storm damage job.  During this response, the member fell through both the roof and the ceiling, suffering minor injuries. This incident however, could well have had far more serious consequences.

Initial inquiries have identified that at the time of the incident, this member and their team, were not using a Height Safety System…

This incident has been reported to SafeWork NSW and will also be investigated by the NSW SES Work, Health and Safety team.  The result of either the SafeWork NSW or NSW SES WHS investigations may result in disciplinary action against the members involved.

In some cases, it is vital to send out an immediate notice for example where an accident or near miss reveals a danger in the way a piece of equipment might be used and which others might also be exposed to, but that is not the case here – this is not a notice telling members to immediately stop using some equipment that has proved to be dangerous.  In this case, members were told a person fell through a roof.  Telling that story before all the facts have been determined may serve as an important reminder to members of the dangers inherent in their tasks and to share concern for their colleague.    The story could be used to stress the importance of running a dynamic risk assessment and using PPE. But all that could be done without adding the conclusion that the members were to blame – ‘this member and their team, were not using a Height Safety System…’ and that disciplinary action may follow.  In my mind, this notice begs the question of what is the point of an investigation.  Is it to learn lessons or apportion blame?

The US Forest Service and Facilitated Learning Analysis

In 2015, I was fortunate enough, thanks to the Bushfire and Natural Hazards CRC and the US Forest Service, to attend the Forest Service’s course on Facilitated Learning Analysis.  This is the method the Forest Service uses to investigate accidents and near miss events.  The driving philosophy is that no-one sets out planning to do a bad job or have an accident. Everyone is going to try their best.  What follows is that a decision to do something, or not do something, must have made sense to the people at the time as being the ‘best’ thing to do.   In context and assuming it’s true that that ‘this member and their team, were not using a Height Safety System’ it follows that for some reason, not using the Height Safety System seemed like a good idea at the time.

If the organisation wants to learn, it needs to understand why that it seemed like a good idea.  What was it about the job, the pressures the team were under, the equipment they had, the culture in their team, unit, region or organisation that said this was a good thing to do?  How often had they done it before with good results and even, perhaps, been rewarded for their quick turn around?  How much do the emergency services reward and value a ‘can do’ attitude?  (For further more detailed discussion, see the section ‘A Tale of Two Coroners’ in Eburn, M. & Dovers, S. Discussion paper: Learning for emergency services, looking for a new approach (Bushfire and Natural Hazards CRC, 2016)).  Understanding those factors allows the organisation to understand the difference between how it believes, or wants, its teams to operate, and how they actually operate.  It is that understanding that allows the organisation to learn and to make changes in culture, practice or equipment so the short cut no longer looks like a good idea.  To put that in context, the problem here (assuming the initial inquiries are correct) is not that the member wasn’t using a Height Safety System, but that despite whatever training and edicts there are, it is the still the case that some people in some circumstances, think that it makes sense not to use a Height Safety System.  Identifying that a Height Safety System wasn’t used will go no way to explaining why it wasn’t used.   But understanding ‘why’ is vital to avoid a repetition.  A learning organisation should see this event as ‘a safe opportunity for those involved to share their story and allow others to learn from it’  (Forest Service, Facilitated Learning Analysis Implementation Guide (June 2013), p 4).

It is a condition of the Facilitated Learning Analysis, and a commitment from the US Forest Service, that nothing that is said during the process will be used against any of the participants by the Forest Service. The Forest Service can’t control what police and other regulators might do, but they won’t take any punitive or administrative action against any member of the Service for what they reveal during this process.   In the Facilitated Learning Analysis Implementation Guide (p 7) they say:

B. ADMINISTRATIVE ASSURANCE OF NO PUNITIVE ACTIONS

It is critical to maintain a solid firewall between the FLA and any potential administrative actions that may be taken against the employee. Information is the lifeblood of safety. We must let it flow. If we punish employees for actions that, in perfect hindsight, appear to be errors or mistakes, we may (or may not) stop them from making errors or mistakes. However, it will definitely stop employees from sharing with management how they make sense about which rules are relevant, and how they make the tradeoff decisions between production and safety.

Another key approach from the US Forest Service is to share the learning.  They do this by getting those involved to write their story, and explain what was happening and their thinking.  This is written as their story, not as a report, and then distributed through, amongst other channels, the Wildland Fire Lessons Learned Centre (p 40).  These publications allow other operators to put themselves in the position of those affected by the event.  During the course that I attended it was reported that when this is done most people could put themselves in the decision makers’ shoes and understand why the decision was made and realise that they too may have made the same decision. Now, having the shared experience they were positioned to rethink the matter if they find themselves in the same position. (You can read reports, and sign up to notifications at the website of the Wildland Fire Lessons Learned Centre – http://www.wildfirelessons.net/home, see also the Forest Service’s ‘Facilitated Learning Analyses – http://www.fs.fed.us/fire/doctrine/learning/flas.html).

Why did the Forest Service adopt this approach? In the Facilitated Learning Analysis Implementation Guide they say (p 4):

By the end of 2004, the U.S. Forest Service fire community was stunned and disoriented by a string of administrative decisions and legal actions against firefighters involved in accidents. To many firefighters and agency administrators, the word “accountability” had become synonymous with “punitive actions.” Owning mistakes and sharing lessons learned from an accident were seen to be career-ending decisions. To protect employees, any learning that was occurring from bad outcomes was local and had to stay local or go underground.

If people knew that an inquiry was being run, with the intended outcome of punishment, people would not share learning, and the Service was suffering.    In identifying the benefits of the Facilitated Learning Analysis approach, the Forest Service says (p. 1):

How an agency responds to an accident is extremely important. The leaders’ responses will either vector the agency toward a Learning Culture or away from it. If the agency assumes the accident happened simply because someone failed to do something right, then the natural reaction is to determine, in hindsight, what rules or protocols were broken. We can then identify (or blame) the rule breaker and return the system to safety. All that’s needed are better rules or better compliance incentives. End of story—until the next accident.

Alternatively, leaders can see that while accidents are very rare, risk is never absent. Employees with limited perspectives continually adapt and make judgments to handle emerging risks, and these adaptations will never be perfect. Errors, mistakes, and lapses are commonplace. So are optimism and fatalism. So are taking shortcuts to save money, time, and effort. So are under- and overestimating risk. Indeed, human performance variability is not only normal, it’s the rule! With this view, leaders can treat accidents as valued opportunities to look deeply into the operation to better understand how employees perceive and manage risk in the real world. This sets the stage for learning and improvement going forward: to be better tomorrow than we are today. With a commitment to learning rather than blaming, an accident becomes a safe opportunity for those involved to share their story and allow others to learn from it.

“Take your pick, you can blame human error or you can try to learn from the failure.”

So how is the SES responding to this event? With a statement that ‘Initial inquiries have identified that at the time of the incident, this member and their team, were not using a Height Safety System’ (ie ‘rules or protocols were broken’) and the likely or at least possible outcome from the event will not be learning, but punishment (ie we will ‘identify ([and] blame) the rule breaker and return the system to safety. All that’s needed are better rules or better compliance incentives.’)  Does anyone believe that will work?

Legal commentary – Work Health and Safety Act 2011 (NSW)

But my (self-appointed) role on this blog is to comment on the law not the policy action of the SES.   With respect to the law, there may well be action by SafeWork NSW because for the purposes of the Work Health and Safety Act 2011 (NSW) a worker includes a volunteer (s 7).  The SES has an obligation to ‘ensure, so far as is reasonably practicable, the health and safety of’ its workers (s 19) and an individual worker has a duty (s 28) to:

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

It’s a long way from saying these duties exist to concluding that SafeWork will take legal action.  SafeWork has several options that can be used, long before prosecution including working with the agency to deal with ongoing safety issues, serving an improvement notice (s 191) and/or accepting undertakings to remedy any defects in work practices (s 216).

But the people involved in this event are already on notice as to the initial view of what caused the fall (a lack of safety equipment) and the purpose of the investigation – to determine if disciplinary action is warranted.

Administering a caution

When police investigate a matter, they can talk to anyone and ask anything they like.  But as soon as they have reason to believe the person they are speaking to may have been involved in the commission of an offence, they must ‘caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence’ (Evidence Act 1995 (NSW) s 139).  If I were involved in this matter I would read the Acting Commissioner’s notice as akin to that caution.

The privilege against self-incrimination

When the police investigate a matter a person has a right to refuse to answer questions that may suggest they are guilty of an offence. This is called the right or privilege against self-incrimination (and, for the benefit of those that watch too much American TV, in the United States it’s called pleading or taking ‘the 5th’ after the 5th Amendment to the US Constitution which says, in part ‘No person … shall be compelled in any criminal case to be a witness against himself…’).  In a Work Health and Safety investigation, a person cannot refuse to answer a question from a WorkSafe Inspector ‘on the ground that the answer to the question … may tend to incriminate the person or expose the person to a penalty … [h]owever, the answer … is not admissible as evidence against that individual in civil or criminal proceedings …’ other than proceedings alleging the answer was deliberately false or misleading (s 172).

For that section to apply a person must be warned by the Inspector of their obligation to answer and the limited use that can be made of the answer.  Failing to answer an Inspector’s question carries a maximum fine of $10 000 (s 171).

It is of course not my place to give specific advice to anyone, I don’t know what happened here or what the attitude of anyone involved is.  But speaking in general terms, if I was involved in an incident and the organisation that I work or volunteer for put out a statement in the terms of that put out by the Acting Commissioner, I would refuse to take part in any internal investigation and would only respond to a WorkSafe Inspector’s questions once appropriately informed and warned that I was compelled to answer the question and that the answer could not be used against me.  I would also insist that it is recorded that I object to answering the question but do so only based on that compulsion.

Conclusion

I make no comment on the actual event.  I can say that I think the Acting Commissioners notice is at least unfortunate. It is known that NSW SES is leading the way in trying to manage lessons for future learning and have an established and well respected Lessons Learned Unit (see NSW SES PLAN 2011 – 2015, Goal 5, pp 42-44).   Despite the commitment to being a learning organization, to set out a notice that pre-empts the findings of an investigation and which identifies disciplinary action as a potential outcome would seem to ‘vector the agency … away from’ a Learning Culture.