Managing vacancies in key roles
By Claudia Kölsche, UMCO.
Responsibility for the safe operation of a company lies with management. However, management cannot oversee all work activities and monitoring duties itself, and so must rely on safety advisers to provide assistance with legal compliance. The obligation to appoint advisers depends on the type, size (e.g. handling and storage quantities) and environmental relevance of the plants being operated.
As soon as it becomes known that a safety adviser is leaving a company or will be absent for a considerable period of time action must be taken. Experts in this area recommend that the situation be regularised no later than 4 weeks after the vacancy arises. The key point here is to establish accountability. While it certainly does happen that the external occupational safety specialist or a dangerous goods officer will be off site for more than 4 weeks, this should only occur where there is an established appropriate safety culture in place that specifies procedures for dealing with any eventualities.
Uninterrupted legal compliance
It is the declared aim of the legislator that safety advisers shall strive to avoid or at least mitigate operational sources of risk and danger, along with environmental impacts. It has proved expedient in this regard to pool specialist knowledge – companies nowadays have various staff members who are entrusted with specific roles. The various roles may also be combined in one person, provided that the practical execution of all duties is guaranteed.
The appointment of a safety adviser by no means relieves the entrepreneur of his obligations. The safety adviser is only accountable under criminal or civil law if the company, whether contractually or by instruction, delegates management of some or all of the relevant operational processes to the safety adviser, who then becomes personally responsible for them (delegation of obligations: in writing, with provision for necessary technical, personnel and financial support). In such cases, the safety adviser, like every employee in a management role, is legally accountable.
Safety advisers assume essential duties
The duties of a safety adviser cannot be discharged on a part-time basis. Rather, the monitoring, advisory and coordinating activities require full integration into the company’s operations (e.g. with access rights and information rights). Safety advisers will know the persons in positions of responsibility and be familiar with company practice. In addition, they will have extensive, certified expertise. They will also possess the necessary personality traits (assertiveness, empathy, communication skills and reliability). Finally, their schedule is often mapped out far into the future in the form of audits, reporting obligations, training/instruction and meetings.
The moment that a safety adviser cannot be reached, accountability reverts direct to the entrepreneur, who then has legal obligations. If the entrepreneur fails to regularize this situation, an incident could, in the worst case, be interpreted as an organisational failure that incurs legal consequences. This is particularly conceivable in the case of SMEs or large companies, where it can be assumed from the outset that the entrepreneur cannot oversee all workplace activities and monitoring duties.
Measures to adopt where a vacancy arises
Ideally, steps should be taken to prevent a safety adviser from being the only person who knows what to do. This is an argument for providing absentee cover, for example, and/or appointing a person in the background. Organisational measures, such as a joint mailbox, may help too because that enables the background employee to step into the role in the event of an incident.
Finding a replacement promptly is key. It must be borne in mind that training a new employee in the areas of hazardous goods, occupational safety and incident management involves extensive training and plenty of field experience. Occupational safety training in particular takes 2-3 years.
Where no suitable employee can be found, one solution would be to source a safety adviser in the market. As a rule, practical monitoring duties have to be performed by the company itself, but organisational duties such as training, meeting reporting obligations and walkabouts can be outsourced as fixed-term and fixed-cost work packages. The advantage of combining internal and external solutions is that external safety advisers bring “best-practices” knowledge with them and may even shoulder some of the risk.
Dealing at an organisational level with a possible vacancy is part of risk management. Ideally, management will meet annually to discuss and document steps taken and any changes to fundamentals.
A vacancy may suddenly arise as a result of employee fluctuation, parental and nursing leave, or illness, but this will not catch a properly prepared company unawares. This article provides food for thought on the risks and opportunities (internal/external solutions). The goal must be to have robust procedures in place for re-delegating obligations to ensure continuity of legal compliance in the event of an incident.
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