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Podcast: Are Corporate Manslaughter Charges Too Much For Safety Incidents?

Jan. 22, 2020
It’s a controversial topic -- whether or not plant management should face punishment for safety incidents. Director of IChemE’s Safety Centre, Trish Kerin, and Senior Editor Traci Purdum talk about recent incidents and people having a right to not die at work.

In this episode of Process Safety With Trish & Traci we look back at some serious incidents within the chemical industry. The things that companies were able to do and not be punished for, for want of a better term, have changed. 

Transcript

Traci: Welcome to this edition of Process Safety With Trish & Traci, the podcast that aims to share insights from current incidents to help avoid future events. I'm Traci Purdum, senior digital editor with Chemical Processing, and I'm joined by Trish Kerin, the director of the Institution of Chemical Engineers' Safety Center. IChemE is based in the UK and Australia, but its reach is global. Trish, how are you doing? I know that, in Australia, you and your fellow countrymen and women have been dealing with a lot. So, can you catch us up on that?

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Trish: Yeah, thanks, Traci. It's certainly been a difficult time here in the last few months in Australia. As you will be aware, we're suffering from quite substantial bush fires, or forest fires as you probably know them. I guess, to put it in a bit of perspective for you, so far to date, the amount of land that's been burnt in Australia is the equivalent of the size of the State of Kentucky, which is a reasonably sized state. It's certainly, by no means, the smallest one in the U.S. But to put that in more perspective, imagine that burnt-out area spanning down the East Coast of the U.S., sort of starting in Virginia, going through North Carolina, South Carolina, Georgia, and into Florida, and then put some fires in Louisiana, and New Mexico, and California. And that's actually what we're looking at in terms of geographic spread of where these fires are.

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Tragically, we've seen at least 25 people killed to date and an estimated 1 billion animals and wildlife in the fires. So, it's really quite a frightening time for us over here, I think, but certainly a reminder that we do need to focus on resilience, and particularly, the natural hazard triggering technological disasters. These are the sorts of issues that, when a natural disaster occurs, that can lead to other incidents in the process safety world, and we need to be prepared for them in that aspect. So, I think that there's even some process safety learnings from what we're seeing out of the bush fires.

Traci: Such devastation that we're seeing, and to put it in perspective like that is just...and to tie it into process safety is something that, I think, that our readers really need to understand a little bit and maybe get some insight out of it. So, I'm glad that we're talking about, not only that topic, but we're kicking off 2020 with a controversial topic of discussing whether or not plant management should face punishment for safety incidents. And a few big cases come to mind, the Upper Big Branch Mine disaster in 2010, where a dust explosion killed 29 miners. The CEO of Massey Energy, which owned the mine, was found guilty on a charge of conspiracy to willfully violate mine health and safety standards, and he ultimately ended up spending a year in jail.

Another incident occurred at Bumble Bee Foods, where a worker burned to death in a lock-out/tag-out accident in 2012. The company paid $6 million to settle criminal charges. The plant's director of operations had to perform 320 hours of community service, pay $11,400 in fines and other penalties, and take workplace safety classes. The plant's former safety manager pleaded guilty to criminal safety violations and was sentenced to three years probation. He was also ordered to complete 30 days of community labor, attend safety classes, and pay $19,000 in fines.

And yet another case, 2005, BP explosion at its Texas City refinery, 15 people died, and 170 others were injured. OSHA announced $87.4 million in penalties against BP. $56.7 million of that penalty was levied for BP's failure to abate the hazards behind the fatal explosion. What kind of message does this send?

Trish: I think the message that it's intending to send is that the regulators and the courts are serious about people having a right to not die at work. And I think that that's a really important message that companies need to receive from society. So, we've societal expectation change over the last 20 years, certainly within my career. But the things that companies were able to do and not be punished for, for want of a better term, has really changed now. So, society demands more, and we've seen, with the rise of social media, society is aware of more of what is going on and they're really using it to pressure a lot of those companies, but also the legislators and the courts.

So, you know, we live in a society where the courts do determine a lot of things. They do determine a lot of case law and set the expectation. I live in a regime where we worked to the principle of "as low as reasonably practicable," which you can't actually clearly define as "reasonably practicable in this instance means this." The court will determine that for you after an event, basically. It will be determined, "Did you do enough, or did you not do enough?" If you did not do enough, then you're going to be found guilty. So, we're seeing a lot more case law determining things like this.

So, to be honest, the punishments don't necessarily surprise me that much. I think we're going to continue to see these sorts of punishments for incidents continue to have these large numbers talked about in terms of fines that have been levied against companies, and we'll also continue to see that certain people within the chain of the incident may well be prosecuted and face criminal charges for the deaths of their workers or their workmates.

Traci: Well, this brings up the question, though, are these punishments harsh enough? You know, back a dozen years or so, as you mentioned, you alluded to, back a dozen years or so ago, worker death was a misdemeanor. You know, wasn't that big of a deal on their end, and it is something that is a big deal. Have those rules changed? And again, are these punishments harsh enough?

Trish: So, I think we're seeing that the societal expectation has changed. And are they harsh enough? We're seeing a move in a lot of places around the world now to push more towards the idea of industrial manslaughter. Though, for example, one of the states in Australia has actually introduced a legal tool within their safety legislation. So, it's not actually in their criminal code for if a worker dies, you can be sent to jail, and it's a strict liability requirement on reckless endangerment, so there doesn't need to be any intent proved in it. I think that's a little bit concerning. I think, I actually think that, if a worker was killed in the workplace, then the company should be held to account for that because no one deserves to die at work. Just flat out, that is not an acceptable outcome for anybody. There does need to be some ramifications to that. If those ramifications are going to include something like criminal sanctions, such as going to jail, then I really think that they should be done under a criminal statute. From that perspective, then, at least you have a natural defense through, you know, you're innocent until proven guilty. You will go through and have your chance to put your case forward, which I think is really important to do, because again, this is another person's life that's in the balance here.

But I'm not actually against the concept of industrial manslaughter, I have to say, because quite frankly, if through my either negligence or recklessness, someone else dies, if that happened outside of the workplace, I'd be on manslaughter charges. Why shouldn't I be on manslaughter charges if my actions, through recklessness or negligence result in someone's death at work? Why should the workplace be separated out from that part of society, I think? So, from that perspective, I think there is some merit in it, that we have to make sure that we do get that balance right, because I should still be held, in that situation, afforded natural justice and the ability to have a defense.

Traci: And obviously, true accidents happen. That's just a matter of life. We aren't talking about punishments for those. We are truly talking about the nefarious characters who snub their noses at safety to bolster the bottom line. So, I do think that, and I agree with you, I think prison is appropriate, and in the outside world, we would be up for manslaughter charges, but you brought up the point of social media and the whole world is watching. Can they get a level playing field and can they look into these incidents properly?

Trish: Yeah, look, I think that is still possible, and it might mean, at times, jurisdictions changes because whilst there's a lot of focus on social media and it can generate a lot of clicks and a lot of shares across the world, at the end of the day, you know, it's called click division, people move on. "Oh, yes, I've shown my support because I liked it. I can move on now. I don't need to worry about it." So, whilst we see a lot happening in social media, I don't think a lot of people actually then remember into the details, so I think it is possible to find an appropriate jurisdiction to prosecute someone should they need to in terms of finding a jury. There is also, then, in some jurisdictions, the option that you can actually choose a judge-only trial as well. So, if you're concerned about the ability to not be able to choose a jury, then you could request that you don't have a jury, that you actually just have a judge hearing your case, potentially.

So, there are many different ways to do that, and you're right, as we've said, this is about recklessness or negligence. This is not about a small mistake. This is not about someone having a small accident because they didn't understand. You know, we're talking gross negligence here. It's not just, "I wasn't trained, so I made a mistake." It is far more than that, and it is the sort of incidents that are killing people that we need to be dealing with. So, I think it can be used in a positive way, perhaps.

Traci: And do you think that there are lessons learned when the BPs of the world get these huge fines and huge punishments set against them? Do you think that's changing the safety culture?

Trish: I think it probably creates a little bit of fear in some people and in some organizations, fear that, "Well, what if it happens to me?" And I would then compare that to this idea of chronic unease. Is it really that fear that it's going to happen to you, or is it actually just putting you into the chronic unease state you need to be in, believing that your next incident is around the corner, so you need to take action to prevent it?

So, no doubt, there will be some organizations where cases like this have a negative impact on the safety culture of that organization because the leaders don't know how to deal with it, and so they deal with it in a negative way. They probably become very dictatorial on what's going on. They don't listen to other people because they just demand that everything gets done.

So, there will be some impacts where it has a negative impact, but for other people, it is an opportunity for them to awaken to this idea that, actually, yes, it might happen to them. So, what are you going to do about it? That's the key here. If you think it can happen to you, what are you going to do about it to make sure you're not caught up in it, that it doesn't happen to you? And I think, from a maturity perspective, those that are more mature in the safety journey will take it on in that direction, and I think that's a positive direction to take it on in.

You know, we see, obviously, there's been a number of issues, as well, in a completely separate area of the banking sector in Australia, and that's raised issues around company directors in Australia, and it's got people saying, "We won't get people that are going to be willing to be company directors if they can be prosecuted for anything." Well, no, they're not being prosecuted for anything, they're being prosecuted for breaking the law. If they don't break the law, they won't be prosecuted. You know, we need to sometimes take a step back and think about what we're actually talking about here. These are instances where a law has been broken, and the way our society works, we then have consequences of actions, and that's how we drive accountability in society. There are consequences of actions. If there were no consequences, anybody could do anything.

Traci: Now, this is, you know... I guess, I can't get my arms around why laws are still broken for the bottom line, why those incidents at Bumble Bee Tuna where they can ignore certain safety measures. How does that still happen in our culture today?

Trish: I think... So, we've talked about recklessness and we've talked about negligence. I don't think people are inherently bad, on the whole. I'm sure there are a couple of bad players out there, and we've all heard the stories of the corporate sociopaths, but at the end of the day, there is a climate that exists within an organization that is a way to look at the culture you've got in that organization. And if the culture is about getting production done, and their experience is not that incidents kill people because they've never killed anybody before, then you're not consciously connecting that, "If I just bypass this to get it done faster, then someone's going to get hurt," because you're not consciously connecting that that's an outcome. But the outcome that you are connecting is, "I'm going to get the job done." So, either, a) "I'm going to get positive reinforcement by being told I did a great job, or positive reinforcement by just not being yelled at," depending on what the culture of the organization is like.

So, positive reinforcement is a really strong tool that people have at their disposal when they're leading, but if that positive reinforcement is to only reward the outcome and not the path that got you there, you're going to end up in situations where people do bypass systems. So, that's when you need to go back and say, "So, what's driving that culture?" And that's where we start to see people up the chain of command being challenged and prosecuted in this space, because, "What culture are they driving that has allowed it to permeate all the way through to the worker on the front line who believes that the organization actually wants them to bypass the safety systems because they're just in the way, and if I do it faster, I'm going to get rewarded," whether it's either, as I said, positive reinforcement of, "You did a great job," or just, "I'm not going to yell at you or fire you today."

Traci: Truly, a corporate culture drives everything and can drive... And I know you've said it before, safety helps the bottom line. So, if you have that corporate culture going all the way down so that these people feel empowered to make the safe choices, then we won't see this, and it's those characters that are creating that culture that are the ones that really need to rethink their focus there. Absolutely great point. And I know you touched on corporate manslaughter laws, and that is pretty abrupt, but what are your thoughts on that being adopted any time... Is it adopted already? I mean, forgive my ignorance, but has anybody been brought up on manslaughter charges already?

Trish: So, we certainly have seen it adopted in some Australians states. So, as I said, manslaughter exists in one of the regulations in the safety realm. In another jurisdiction in Australia, that actually appears within the criminal code. So, we are seeing it start to appear, and there's certainly another two states, or two jurisdictions in Australia that are moving towards it as well. Other parts of the world also have it.

So, you know, we've been fearful of moving to corporate manslaughter in the corporate sector for many, many, many years, I think. You know, I remember people first talking about it 20 years ago and getting very nervous about, "We can't be having this. We can't be having people go to jail." Well, as I said, provided on the afford of all the natural justice, where it would be afforded if the person died outside of the workplace, why shouldn't I... Because, in theory, we should be able to control the workplace a lot better than the outside area. I don't think it's that harsh at all. We're also not seeing people brought up on corporate manslaughter all the time. You know, we're not seeing huge numbers of prosecutions happening yet. Again, it needs to get to that point of being gross negligence or recklessness, and when we get to that point, then provided people have their opportunity for their defense in court, provided they are presumed innocent until proven guilty by a jury of their peers or a magistrate should they choose, then I don't think it's necessarily such a bad thing. I don't think people, just because they're at work, should not suffer the consequences if they have directly contributed to the death of another human.

Traci: And people at work should be able to have a safe workplace, absolutely.

Trish: Absolutely.

Traci: Do you have any final thoughts on this topic? I know you can go on, on and on and on for a lengthy amount of time, but any good final thoughts on this topic?

Trish: Yes. I think, as I said, it comes back to culture, it comes back to leadership. We really need to focus on making sure that we've got those parts of our organization working well so that we get people doing the right thing because that's the easiest option for them and the best option for them. If the easiest option or the best option is to bypass the safety systems, they're going to bypass the safety systems. That will just happen. So, how do we make it as easy for them to get it right and make it so that the safety systems are what they get rewarded for doing? And so, if you've got pragmatic safety systems, then, as you mentioned earlier, it does not cost you money, it actually makes you money because it keeps you running. The moment you kill someone or the moment you have a serious injury within the workplace, all of a sudden you're not running that factory anymore, or that plant, for a period of time, and it's going to cost you money, and you're going to get sued, and you're going to get penalized by the regulator, and you're potentially going to face jail time. So, focus on getting the culture and the leadership right so that people follow the required safety and go home at the end of their shift.

Traci: That's what it's all about. Unfortunate events happen all over the world, and we will be here to discuss them, and learn from them, and try to get people to do the right thing. On behalf of Trish, I'm Traci, and this is Process Safety With Trish & Traci.

Trish: Stay safe.

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Trish Kerin, director, IChemE Safety Centre, Institution of Chemical Engineers, spent several years working in design, project management, operational, safety and executive roles for the oil, gas and chemical industries. She currently sits on the board of the Australian National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) and is a member of the Mary Kay O'Connor Process Safety Center steering committee. You can email her at [email protected].
Traci Purdum, an award-winning business journalist with extensive experience covering manufacturing and management issues, joined Chemical Processing as senior digital editor in 2008. Traci is a graduate of the Kent State University School of Journalism and Mass Communication, Kent, Ohio, and an alumnus of the Wharton Seminar for Business Journalists, Wharton School of Business, University of Pennsylvania, Philadelphia. You can email her at [email protected].

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