In a recent case of unfair dismissal in the Fair Work Commission (FWC 5004:2019 under commissioner Williams Perth 24 July 2019) we learn how creating onerous bureaucracy creates its own demons. The case of Wilson vs Boart Longyear demonstrates how the creation of onerous safety management systems as always, brings by-products and trade-offs that undermine the very purpose of creating safety systems. Greg Smith calls this the ‘safety paradox’ which he often discusses in our Due Diligence Workshop (https://cllr.com.au/product/due-diligence-workshop-unit-13/) Module 13.
The transcripts show that Mr Wilson was a WHS officer at Boart Longyear four years and that he undertook a trip to deliver a part to one of their three sites. Whilst the case explores a number of failings on the part of the Applicant it is helpful to explore two aspects of this case which upheld the dismissal finding against Mr Wilson. The Applicant rolled the vehicle on his way to his destination. He was subsequently terminated and hence the hearing of his case in the Fair Work Commission.
The first point of interest is that a bureaucratic process had been created called a Journey Management Plan (JMP) . A JMP involves a risk assessment for undertaking a journey including generating a risk score. For example, a score between 25 and 49 is considered a ‘significant risk’ and approval must be sought to undertake the journey from both the Operations Manager and EHS Manager. It is clear from the case that completing this form was an onerous task as the Applicant had undertaken the completion of this risk assessment on behalf of others. The Applicant scored this particular journey at 21 which means the trip didn’t need such approval.
We learn at para (58) in the transcripts that ‘tick and flick’ (https://safetyrisk.net/a-masters-degree-in-tick-and-flick/ ) were a part of WHS practice and that JMPs were regularly not followed nor was approval gained for travel. It is clear from the transcripts that excessive systems had created a cultural by-pass.
At no place in the hearing was the nature of the culture or systems of Boart Longyear on trial but rather that the Applicant had failed to properly undertake the correct use of Boart Longyear’s WHS systems. It was also mentioned in the case that lower management took JMPs seriously whilst executives did not (62). (Clearly, zero harm should only be applied subjectively to the least powerful in the organization.)
It was acknowledged by the court that JMPs were a subjective process and it was asserted that the Applicant had knowingly under scored his risk rating. The transcripts also state that the Applicant didn’t understand the basic principles of risk assessment involved in completing a JMP even thought he had completed JMPs for others. We learn at para (93) that there was a ‘culture of non-approval of JMPs prior to journey commencement’.
The second point of interest regards the completion of the JMP itself. It is clear from the case that if you create a bureaucratic process to assess risk that it has to be completed correctly. In essence the Applicant was terminated because he failed to comply with his own systems (para 129). If one creates a paper-based system, even if not required by the Act, Regulation or Standards, one will be held accountable against those systems.
On reflection this case holds three points of further interest.
- On reading the transcripts and nature of the case it is clear that a simple two minute conversation could easily have prevented both the vehicle roll-over and the dismissal of the Applicant.
- Boart Longyear is a zero harm organization. How can they undertake any driving on any road at any time??? Surely unless the risk is assessed at zero such a task should not be undertaken?
- I have been driving on Australian roads (including outback single dirt tracks) for over 50 years and have zero accidents and have never filled out a JMP. If my record is zero, does this mean I won’t have an accident tomorrow?
Dr Rob Long
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