Following a safety incident, it is common for a person conducting a business or undertaking (PCBU) to seek external guidance and assistance to investigate the incident. Frequently, work health and safety consultants are engaged to conduct audits of documents and WHS systems and undertake investigations into the cause of the incident. This is where any deficiencies can be identified, analysed and rectified, including drafting reports, manuals and procedures to ensure the incident does not occur again.
However, there can also be significant risks to a PCBU in taking such a course. Workplace Health and Safety Queensland (WHSQ) can require disclosure of such documents (e.g. pursuant to a notice to produce documents or information under s 155 of the WHS Act) unless a reasonable excuse exists not to comply.
A WHS internal investigation can assist the business to understand why and how the incident occurred and can also serve to demonstrate to the workforce that the business is taking an active approach to addressing WHS issues.
We are highly mobile and can attend an incident location immediately. We can progress our investigations quickly and provide you with real-time advice as to your rights and duties following an incident. Additionally, we can provide advice regarding the prospects of being charged with an offence under the WHS Act, who may be charged and what steps can be taken in mitigation in response to a possible prosecution.
When required, we can engage engineers and WHS consultants on your behalf to support our investigation. This is done under legal professional privilege (LPP) so that we can ensure any findings, opinions and reports remain protected by your LPP. Documents created under LPP (for the dominant purpose of legal advice or preparation for litigation) are protected from disclosure to third parties, during an investigation and through to a prosecution.
A WHSQ investigation will be focused on gathering materials and information that will likely be used in support of a prosecution for a breach of the WHS Act. A WHSQ investigation can take longer than 12 months to finalise. WHSQ will then make a recommendation to the Office of the Work Health and Safety Prosecutor (OWHSP) as to whether a charge can be substantiated. The OWHSP must commence proceedings within two years after the offence first comes to the notice of the OWHSP.
We recommend that you do not wait for that disclosure to occur to discover what deficiencies WHSQ/OWHSP might be alleging with respect to your documents, WHS systems and procedures. By undertaking an internal investigation under LPP at an early stage, we can assist you to identify any gaps and address these issues. These steps can be used to strengthen your position in any future legal proceedings.
Gilshenan & Luton are specialist criminal defence and WHS lawyers experienced in WHS investigations. We have the requisite experience to conduct incident investigations efficiently, discretely and under LPP.
We can attend the workplace immediately following a WHS incident and commence an internal investigation. We allocate the necessary number of lawyers with the appropriate level of experience to ensure investigations are conducted efficiently with costs kept to a minimum.
Following an internal investigation, we can produce a report detailing our opinion on causation and prospects, advice regarding ongoing steps and prospects of a prosecution under the WHS Act.