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Restorative Justice and Work-Related Death

Sep 01, 2009

by Dr. Derek R. Brookes

This research project was initiated by the Creative Ministries Network (CMN), which is based in Victoria, Australia. CMN have provided grief-support for family members bereaved by work-related death for more than ten years. Their extensive experience found that the grieving process was prolonged and intensified by how the legal system and other agencies dealt with work-related fatalities.

In searching for solutions, the agency was inspired to examine restorative justice (RJ), mainly because they had witnessed the healing that resulted from several (self-arranged) meetings between families and company representatives. CMN subsequently applied for a grant from the Legal Services Board of Victoria to explore the feasibility of RJ in this context, and I was contracted as the principal researcher. 
 
The project consisted of two parts. The first involved a literature review, which sought to explore and clarify the kind of issues that might be faced in this context. This included addressing: (1) whether it would be fair and reasonable to invite a company director, manager or worker to take responsibility for their part in a work-related death – even where no personal criminal liability has been (or can be) established; (2) whether RJ can provide any distinctive benefits to those affected; and (3) how best to situate RJ vis-à-vis the legal process. 

Three working hypotheses emerged from this discussion, which were then tested in a consultation process. This involved interviews with bereaved families, employers, unions, criminal defence lawyers, OHS investigators and prosecutors, and the coronial service. The findings are presented in the “Consultation Report”, with full transcripts available in the “Consultation Interviews”. 

This second part of the project aimed, above all, to give a ‘voice’ to those who had lost their loved ones and their work colleagues in a work-related incident. It presents their stories, their thoughts and their feelings. It reveals their enormous generosity, courage and humanity, as well as their raw pain, anger and profound grief. 

We found that almost everyone wanted a better way of dealing with the fatality. No one suggested that the current legal system should be entirely discarded or by-passed. But did want it to be more effective, efficient and more considerate. They also wanted the kind of outcomes that RJ is, uniquely, able to offer.   For example:

  • “I’d like to meet with the man that was actually on the site when it happened. . . . . He was the last one to know what was said, what they were doing.  [I’d just] want to know – [my son] . . . always used to say he wanted his mum – no matter what, no matter how old he was. I’ve always had a vision that he’d be screaming out ‘Mum, mum!’” [TF8]
  • “[What I would want is] the company actually coming and saying that they didn’t do everything within their power, or they didn’t take as much responsibility for what should have been going on. . . . [Taking responsibility] doesn’t mean . . . it’s all your fault. It’s just that accepting that you had some role in it. . . . I mean they should front up and just say it.” [TA3]
  • “I’d want [the employer] to say, ‘Look, I’m really sorry. I never meant to hurt your brother. I’ve done the wrong thing. I realise I’ve done the wrong thing. I’ll do whatever I can to protect anybody that works for or with me again.’ I want him to say: ‘I get it: I get what I’ve done. I’m really sorry. I can’t bring your brother back. But I’ll do everything I can to make sure that it never happens again.’ That’s what I want to hear. And then he’s got it, you know – he’s got it.” [TI6]

While most interviewees were in favour of RJ, they also expressed a number of important concerns and caveats. Many of these involved best practice issues – such as making sure that RJ facilitators are properly qualified and trained. People could see that an RJ process, done badly, could easily do more harm than good.

One concern that virtually everyone mentioned was the threat of prosecution, and the way in which this could inhibit employers or employees from meeting with the family and speaking openly about their part in what happened. But most felt that this issue could potentially be resolved if RJ was placed after the legal process had been concluded. As one employer put it:

  • “I think it’s fresh and still a bit raw, for our people, at the start. Whereas even further down the track, they might be more open and less defensive. It’s very much in the past. They’re over any fear of legal retribution or anything like that. They could be just more free about it. They’ve had a lot of thought and time then to reflect. That would seem logical.” [TL24]

Others felt that the threat of prosecution might not be such an issue if RJ was an integral part of the legal process, for instance, if it took place in the context of a court-ordered undertaking. Some suggested that there may be ways of ensuring that whatever was said in an RJ process could not then be used in a court of law. Whatever proposals were put forward, everyone agreed that the needs and wishes of the bereaved families should come first. 

On a personal note, I have been involved in RJ for over ten years; and this has probably been the most challenging and rewarding project in which I have been involved. My deepest hope is that it might contribute to the development of a RJ service in this area, so that those who have suffered the impact of a work-related death might, someday, be given the opportunity to experience the kind of unique benefits that restorative justice can offer.

 

Dr. Derek Brookes
Research Fellow
School of Social and Political Sciences (Criminology)
University of Melbourne
Email. derekb@unimelb.edu.au or dbrookes@relationalapproaches.com

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