In October we wrote about amendments to the Act which would take effect from 30 October 2019. One of those amendments has been the subject of discussion among employers.

The Act was amended to allow an employer to make an “expression of regret” or an “apology” (with each of those terms being separately defined) without those statements being admissible in a civil proceeding.

Why apologise?

We can all appreciate the benefit of a sincere and timely apology, whether in our personal lives or in the workplace. Employers are therefore encouraged to make a genuine expression of regret or an apology in appropriate circumstances to demonstrate empathy and maintain a productive relationship.

There is ample evidence that trust and understanding goes a long way towards ensuring the rehabilitation process is successful.

The breakdown of trust is a major factor prompting injured workers to bring damages claims. It therefore benefits the employer as well as the worker for an employer to be able to show compassion without the risk that such a basic human response will be held against the employer in civil proceedings.

What about criminal proceedings?

The amendments to the Act only reference civil proceedings.

Criminal proceedings may arise out of serious injuries. The amendments do not rule out the use of expressions of regret or apologies in criminal prosecutions under, for example, the Work Health and Safety Act 2011, if the worker suffers a serious injury.

Should an employer apologise?

Whether an apology is appropriate, and if so, the form and content of that apology, is a judgement call. The personalities of the people involved, the circumstances of the event and the seriousness of the injury are all matters to take into account when considering an expression of regret or apology.

Just as some people benefit more from receiving an apology, some people are better at delivering one.

The vast majority of injuries arising out of workplace incidents do not result in criminal prosecution. Therefore, an effective expression of regret or an apology would be welcome, effective and without risk to the employer in most circumstances.

If as an employer you remain unsure about your risk, compassion and comfort cost nothing.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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