Expert Ease International - Opinion "It only takes a spark to start a prairie fire"

SPR-001: In Consideration of random Drug Testing policies
SPR-002: The Competent Worker
SPR-003: Corporate Governance – The Role of the EH&S Professional

Drugs’ testing is an invasive procedure, whether it involves taking body fluid samples or cutting hair, and invasive procedures beyond those necessary for surgical purposes or expressly sanctioned by proper laws, constitute an assault on the individual, no matter how minor the physical hurt caused. It further presumes a state of guilt with the onus on the individual to continually prove his/her innocence.

Many policies state that the testing procedures have been developed for safety purposes. However such a proposition may be negated if the list of drugs that are to be tested for are “controlled” drugs, and therefore illegal, substances. Indeed a list must be developed in order for drugs screening to be effective as there is no single test that will detect all possible drugs in the body. Tests are drugs/chemical specific and therefore it is necessary to decide which are to be tested for. If an employee is told that they are to be tested for a particular drug (illicit or not) they are in effect being told that they are suspected of using that drug.

There are many GP prescribed and proprietary medications that adversely effect performance and therefore safety, but by their omission from a company’s testing procedures, drugs screening policies are likely to become a policing operation by employers. If basic civil and human rights prohibits the State from conducting such screening operations on its citizens, why then should private companies be permitted such a function?

Safety professionals should seek good practice for improving safety. In this regard, the correct approach is to set standards for safety and performance and to expect workers to meet those standards after appropriate induction and training has been provided. Where workers fail to meet the required standard (or appear likely to be unfit to do so) then the role of the manager is to work with the employee to determine why and to inform him/her of the requisite performance requirements (including abstinence from substances likely to impair performance, and to report the taking of medication that may do so). It is by setting the standards, monitoring performance and, where necessary, retraining or removing consistent under-performers that good safety practice is established without the infringement of human or civil rights. In these circumstances it is immaterial whether the under-performance is due to incompetence, medication or drug use, the approach is the same and is acceptable, in law and in principle.

If any individual worker is involved in “illegal” activities, it is up to the police to collect the evidence and to prosecute, and there are internationally recognised standards controlling how this is to be done. It is not for employers and advocates of drug screening to subvert justice by adopting such highly irregular practices. Safety professionals must ensure that their concern for the safety and welfare of workers is holistic, far-seeking and ethical.

Definitions of competence have a tendency to focus on knowledge, qualification and experience[1] with the weighting given to either depending upon the particular views of the person making the case. The case for the importance of knowledge and qualification is based upon the fact that the competent person has demonstrably undertaken a course of study and has been assessed at the end of it. The certificate “proves” the holder has the knowledge and by extension is competent to apply it in the work situation.

The case for experience is based on the argument that knowledge is gained in the doing of the work and that the more time a person is on the job the more knowledgeable and competent s/he becomes. However it is often a matter of striking a balance between the two and seeking evidence of both in determining the suitability of a candidate for a particular post, (though the case differs when it comes to membership to professional bodies where entry is based on high-level qualifications and progress upwards based upon on-going experience thus denying recognition to those who may not have the requisite qualification irrespective of other qualifications, experience or, importantly, competence).

A rational critique might argue that neither qualification nor experience provides sufficient or even necessary measures of competence to carry out employed work. Qualifications, based as they often are on examination, (practical or written), at their most fundamental merely confirm the individual’s ability to undertake an examination at a specific date. Students are quite capable of and often follow strategies designed to take them through the examination with the least amount of effort, and may then view the application of what they have learned as being generally irrelevant after the all important examination is over. This may be particularly so with regard to the younger student/apprentice, (or even the maturer student studying part-time for a particular qualification). This attitude is often underpinned by the attitudes of experienced workers, who have been known to advise new entrants to forget what s/he has learned in college as they are now in the real world.

And what of the argument in favour of experience as a measure of competence. The mere fact that someone has time served is no indicator of his or her competence during or at the end of that time. Indeed, it is quite possible that a highly motivated employee with only a few years experience may be more competent than an old hand with 20+ years behind him/her.

There is no doubt that qualifications and experience are important indicators to a worker’s likely competence, but as a definition of competence they are wholly inadequate, and as a measure, not sufficient in themselves. A more appropriate definition of competence would be the consistent skilful application of skills and knowledge to any specified work operation (at whatever level that may be within the company), where the use of the term skilful implies conducting the operation to the highest standards within the field. In this respect a competent worker is one who time and again carries out his/her work activities without causing harm (in its widest sense) or hurt. Integral to this concept of competence is the notion that, having regard to the worker’s age, experience and skill, s/he will know of the hazards and apply the controls necessarily associated with the work (See Dalton v Frendo (1977), Irish Supreme Court). The thread of competence extends throughout a company; subordinates, supervisors, managers and executives, each level skilfully applying their knowledge and skills to the successful completion of their particular work areas.

Employers are required to ensure that workers have a safe working environment and thus owe a duty to exercise reasonable care in the employment of staff so as to ensure that they are competent to perform their work so that they will not expose themselves or others to harm. S/he must therefore employ staff that are competent, or train and maintain in competence workers that they do employ. It is in these regards that the measurement of competence is applicable. Qualifications and experience may be taken as relevant considerations at an early stage of recruitment, but should not be considered as definitive indicators of competence for the very reasons stated above. What is more appropriate in determining the competence of an individual his/her observed practice (by an individual competent to do so) and the evaluation of the product of his/her work. Thus, for prospective employees, references detailing his/her competence based on recorded performance are of more benefit than simply a list of qualifications or details of years served. Similarly, with incumbent employees, regular recorded performance appraisals are an essential pre-requisite in ensuring that accepted standards of competence are regularly monitored and timely intervention for training and re-training made.

A core tenet of competence is that the skills necessary for any work operation include the skills of recognising what could cause harm and of proceeding in a manner that ensure that such harm will not be realised. There is no dichotomy between the skills required to do a job and health & safety matters. Competence is negated if on the production of a quality end product, the worker and/or his colleagues have been exposed to hazards, whether or not harm occurred. Competence is therefore as much about the process as it is about the production of an end product, and the skill in getting there requires that no one be unnecessarily exposed to hazards.

It is in the recognition of this simple fact that we can re-evaluate our perception of competence to ensure that health and safety is an integral to the process of skills development rather than an add-on program which may or may not take place for any number of reasons or which may be ignored by the worker as being a hindrance to his functioning in the workplace.

[1] As an example the University of Guelph has the following definition: Competent in relation to specific work, means a worker who is qualified because of worker knowledge, training and experience to perform the work. A competent worker is familiar with the Occupational Health and Safety Act and with the provisions of the regulations that apply to the work, and has knowledge of all potential or actual dangers to health or safety in the work. University of Guelph - Safety Policy Manual

“…boards are expected to take due regard of, and deal fairly with, … stakeholder interests, including those of employees, creditors, customers, suppliers and local communities” (OECD Principles of Corporate Governance, annotation to Principle V, Responsibilities of the Board).

In the UK, when the Director/CEO of an outdoor pursuits company was prosecuted and jailed by the courts for safety failures by his company (a school project ended in disaster when a number of children were drowned on a canoeing activity organised by the company) corporate accountability entered a new era where it was no longer sufficient for the Board to be focussed on the interests of major shareholders, and liable only as a corporate entity, whilst leaving the day to day running of the company to Management, including the responsibility and individual liability for any failures, (safety or otherwise).

This decision meant that not only had the Board of any company to have due regard to the interests of those affected by the workings of the company, but that the members of the Board could and would be held severally liable for the failures of Management. In effect the roles and responsibilities within the company are now recognised in law as being so intrinsically linked that culpability flows upward to the Board and the chairman rather than downwards to the weakest and thus most vulnerable employee.

Recent events at Enron and WorldCom, the investigation into and the report on Ansbacher in Ireland focus primarily on financial irregularities at the top of companies. Billions of dollars have been lost and the financial markets have been shaken to the core as a consequence of the activities of a few powerful individuals, illustrating all too well the central role that Boards and individual Board members have to the well being of their companies and to the communities (social and financial) in which they operate. The OECD Principles on Corporate Governance emphasises the “degree to which corporations observe basic principles of good corporate governance is an increasingly important factor for investment decisions” and that “employees and other stakeholders play an important role in contributing to the long-terms success and performance” of the company (OECD Principles of Corporate Governance, preamble).

It is crucial therefore that the roles, responsibilities and relationships within companies and between companies and their social, economic and judicial environments are reviewed continuously to ensure that within the corporate governance framework the rights of all stakeholders, as established by law, are protected and respected. There is one particular aspect of the corporate governance framework that relates to the role of the EH&S Professional and in that respect an alternative model for the structuring of individual and corporate safety that ensures statutory compliance, meets with the requirements of the OECD principles and attains performance optimisation has been gaining increasing attention at the highest levels of management.

A key issue facing the EH&S professional is his role in respect of the company’s requirement to ensure the safety and well being of the workforce and the public. All to often, responsibility for safety falls to the safety professional and despite monumental efforts on his part, he is often under-resourced, under-valued and scapegoated for failures on the part of fellow managers. It is argued that the EH&S professional is not responsible, beyond that laid on him as an individual employee, for safety within the company but that he has a valuable role to play in supporting and assisting those who do have the responsibility for safety. The model of operational analysis and control proposes a paradigm shift within which safety is the responsibility of the Board and the EH&S professional is a respected adjunct to the Management team, called upon to advise and support his colleagues in the attainment of their performance objectives.

It is a model for performance management that outlines the dialogical relationship between a company’s objectives and its contemporaneous situation and ensure a process capable of defining and achieving those objectives without loss or injury, (human, financial or social).

6,000 + employees are unintentionally killed each year in the USA, and $127 bn. is lost to the economy as a direct result of workplace accidents. Governments are looking to the new crime of corporate killing and to the Board to lay the responsibility for such killings. The challenge for companies today is not how to circumvent the law and lay the blame for safety failures elsewhere, or to by-pass imprisonment by paying financial penalties for injuries to workers. It is not to make corporate governance work at it most basic principle by redressing those whose rights have been violated.

No, the challenge for companies is to ensure that the framework of structures and procedures are designed to ensure that the company is fully capable of achieving it objectives in an effective and non-injurious manner. It is about establishing wealth, work and sustainability objectives, the means of attaining those objectives and procedures for monitoring and adjusting performance in the light of past events, current knowledge and the evolving situation.

There can only be one standard of performance, namely that companies produce a product or service in a manner that will not injure workers or others, and that straightforward position, extended includes, no damage to the environment or to profitability. In other words it is not unreasonable to consider all the potential losses and put the proper controls in place prior to commencement. Proper management of the entire operation requires that operational outcomes are defined, resources provided and reviewed to consider the possibility of failure, prior to commencement, during the process and at various other stages.

The objective of integrating the highest standards of occupational safety and health with improved business performance means that the end product or service will be achieved in a manner that protects the employees, the public and the company from harm. If business performance, rather than the risk, is managed and the safety of the operation controlled then the operation will be non-hazardous and the outcome will always be non-injurious. This is the objective of corporate governance, and the OAC model will provide companies with the tools for the ensuring these outcomes.