Many organisations detail their safe operating procedures, critical safety procedures (CSP) and ‘Golden Rules’, in a highly prescriptive manner that is totally task focused. They then create generic training and accreditation processes. Too often the process is designed by someone who is obsessed with paper governance and then supervised by people who aren’t. The following vices emerge:

1. The consultation around the process lacks investment from the people who will ultimately do it – they see the ‘safety police’ as not part of their team.
2. The safety person writes prescriptive laws based on task-focused risk assessments instead of  getting a deeper understanding of the process and safety principles
3. The people who undertake the process are assessed against the process by their superiors, who know the process required and read into the process how it can be done, and give latitude, as it is not a high priority to them
4. In not being vigilant they condone failures in the process and don’t improve the process
5. A person, who is struggling with management is seen to not follow the process and the risk of non-compliance is exaggerated and described in terms of high dudgeon failure; they lose their job
6. The FWC reinstates the employee and orders they be paid for lost time

Two key legal principles emerge that have significant practical application.

1. Policies need to be based on principles, be well consulted, be operationally sound and be owned by employees who work under the policy and
2. If you condone a breach you can’t punish because of a later breach – Doctrine of Condonation

In Knowles v BlueScope Steel Limited [2020] FWC 1015 (11 May 2020) , Mr Knowles had been re-accredited in a manner that was inconsistent with BlueScope’s interpretation of a CSP. BlueScope’s assessment of the risk of harm arising from the breach had been exaggerated. The CSP lacked operational nouse, was prescriptive and susceptible to different interpretations. He was fired on notice. The FWC reinstated him for two reasons – he didn’t breach the policy when viewed accurately (an interesting view from the Commissioner). Two, and perhaps more importantly, because his superiors had condoned the very breach on re-accreditation and so the Doctrine of Condonation made the termination bad. Mr Knowles was reinstated and paid all lost wages – a terrible result for BlueScope.

The lessons:

1. Understand what is the problem you are trying to solve, by engaging with and committing to the people who are at risk
2. Consult deeply with the people you are trying to protect so they are committed to the process
3. Craft your process with an eye to safety principles, not just task prescription and
4. Never condone a breach. When you do – you undermine future performance and conduct performance.