The Safety of Work

Ep.65 What is the full story of just culture (part 2)?

Episode Summary

Welcome back to our multi-part discussion about just culture.This is part two of our deep-dive.

Episode Notes

In this installment, we cover more chapters from Sidney Dekker’s book about just culture. Last week we covered the core ideas of just culture. This week, we go over retributive and restorative culture and the impetus behind rule-breaking.





“If our purpose is to make a better workplace, then we need a system that for most people, most of the time, it’s doing a good job.”

“When we talk about safety, we’re not talking about elements of a typical criminal offense; we’re talking about things that in the criminal courts would be talking about negligence. Which is all about meeting acceptable standards.”

“Sidney emphasizes a lot the importance of all stakeholders to share their stories with each other.”



Just Culture

Episode Transcription

David: You're listening to the Safety of Work podcast Episode 65. Today we're asking the question what's the full story about just culture, part two. Let's get started. Hey, everybody. My name is David Provan and I'm here with Drew Rae and we're from the Safety of Science Innovation Lab at Griffith University. 

Welcome to the Safety of Work podcast. In each episode we normally ask important questions in relation to safety of work or the work of safety and we examine the evidence surrounding it. But like last week and this week as well, we're doing a short three part series on Sidney Dekker's book called Just Culture to really get underneath Just Culture, a set of ideas and its application to safety.

Thanks to the listeners who responded to last week's episode on LinkedIn and we'll address some of the comments and questions upfront in this episode. If you haven't listened to episode 64 yet, you might be coming in a little bit cold but you can hang around and I'm sure the ideas we're going to cover in the chapters this week will still make some sense anyway, but then go back and look at last week as well.

Drew, last week we covered the core ideas of Just Culture that we presented in the preface of the book and you gave us quite a good overview lesson on the history and the origins of the Just Culture in safety. Going back, I suppose, to the modern ideas with Jim Reason in the 1990s, but as far back as the early 20th century and the advent of workers compensation insurance schemes and liability management with organizations. Drew, you'll be pleased to know that I've got my third edition of the book this week thanks to the speedy Amazon delivery team. 

Today, we're going to cover a couple of topics from a few chapters. One on retributive and restorative culture, let's spend a bit of time talking about those. And then another on why people break rules. Before we do that, should we talk about some of the comments and questions online?

Drew: Yes, let’s. David, I have to say that I regret having spent so long on the preface last week given the size of the couple of chapters we're going to talk about today. One thing I hadn't appreciated was there's a lot of storytelling in the book and there were some new stories that he’s added between the editions. I think everytime he gets a new story about someone who's been treated badly by a just culture process, it goes into the book as an illustration of a particular point.

Let's go on the listener's questions and comments. The first one is an interesting one. We'll just give people's first name to avoid fully identifying them but these are public comments mainly from LinkedIn. Adam pointed us to a discussion by Daniel talking about how regression to the mean has interesting effects because if we reward people for doing really well, they tend to fall back towards average and it looks like rewarding has failed. Whereas if we punish people for doing really poorly, they will turn towards average and it looks like our punishing has succeeded. We have a bit more of an inclination then to see punishment as effective than to see reward as effective. Your thoughts, David?

David: We did that episode on rewards scheme, Drew. You might recall there was that outside of safety an example of the university study, students were given awards for attendance and they tended to attend less after they were awarded. They went, oh I'm doing too much. I could afford to slack off a little bit and still pass this course. 

I hadn't thought about fitting it in a context of just cultures because again, individual behavior level and a lot of times we're talking about learning, we're talking about system wide learning. I really didn’t know how to fit it in, Drew. You made an interesting reply on LinkedIn, what were your thoughts?

Drew: I didn't know how deeply we should go in. I guess the main point of the comment was that just how focusing on outcomes can blind us to the processes generating those outcomes. Your typical example is that just because your team scores more points last week than this week doesn't mean your team got worse. If your team did lots of points, then of course on average they're going to get worse rather than better, but that doesn't mean they've suddenly started playing worse. 

The analogy is that in workplace accidents, we need to be very careful that we're not punishing the outcomes because it could be that we've got two identical processes. One of those people ends up in the accident and they’re the ones who get punished because the other one who gets the attention of the just culture process. That was my only thought there, David.

David: I think the outcome is really interesting, Drew. I like the way you framed it and that probably gets us off to the next comment which is, when are people really, really blame worthy? There's just no other option. There's nowhere else to look and there's really nothing to do other than to blame the person for what they've done. 

Tanya mentioned a discussion that happened in one of Todd, friends of the show, he's a pre-accident investigation podcast. I didn't listen to the episode, Drew, I think you haven't as well. I think the general idea there was finding examples that people have done things that are so bad that they absolutely deserve harsh consequences. This is the idea of reckless violation. There's just no point of anything else than blaming the person. Drew, your thoughts on that?

Drew: We touched on this a little bit last week. I think I hit you just out of the blue with the question to see how you'd react. I personally don't like trying to make arguments about what’s a good system from extreme cases. I think I said that a lot in the last episode that even if there were people that we should be punishing, it doesn't make sense to optimize our processes for dealing with those real corner cases. 

If our purpose is to make a better workplace, then we need a system that for most people most of the time, it's doing a good job. Even if there are people who slip through the cracks rather than systematically getting it wrong for most people, just to make sure that we catch that one bad apple who really deserves to be caught. 

I also think, again I haven't listened to David Marx on this podcast, so I don't know about the particular examples he was giving. But I'm aware of the general strategy of pointing out these people who are just so obviously blameworthy that they defeat the idea of a blame free culture or restorative culture.

I think that the more extreme you make the cases, the more self-defeating the argument is. If someone is really that bad, that's why we have a real justice system. We live in a society that has courts. It has criminal liability if you are negligent and you hurt other people, it has civil liability if you're negligent and you hurt other people.

If there really are people who are so blatantly bad that they're threatening the lives of other people through their reckless behavior and it is so unquestionably obvious that it's their fault and not some systematic problem, then why are we, through our company safety processes, trying to deal with these people?

David: I think we'll come back to this idea about designing for an extreme case as opposed to designing for something that maximizes the performance that you process day in and day out.

Finally, I suppose, on the listener comments, James, he sort of asked us explicitly to say that there's more influences on the decision than maybe just what the organization or the manager might want to do in a particular situation and suggesting that there's external parties, maybe regulators, and I assumed and read into the comment clients, if you're a contractor and so on, and they all impact and frame these decisions about just culture and retributive justice and what to do.

I can see how some of that applies but James also makes a comment about industrial manslaughter and backward looking accountability and suggesting that regulators are more interested in these retributive styles. Maybe they are, but they're doing it because they believe that that style of approach will actually create forward looking prevention based on fear and deterrence. They're still trying forward looking accountability. They're just going about it in a different way to what Sid would promote, which is something that's restorative.

Drew: One of our PhD candidates, Derrick, has published a little bit about this, and he's got a lot more to say about it in some upcoming work that's still under peer review and in his thesis to be submitted shortly. He has got a number of examples of external pressure, not just from regulators, but also from clients and principal contractors, affecting the ability of organizations who want to reform their investigation and just culture processes, but are unable to do so because of that external pressure. 

I'm personally disappointed with anyone who uses that as an argument for their own system. I think it's very true that definitely happens but I think that if you're claiming to have a just culture system and then when you're challenged on it, your reason is, yeah, well, I know it's not a just culture system, but I have to do it because the regulator makes me or because the client makes me. Then let's not pretend that we're trying to be fair and just. We're trying to set up a system to protect us from legal liability. Let's not call that a just culture. That's 1984 style double speak. 

If we think that the system is fair, then let's make it as fair as we can. If we're doing it because we have to do it, then let's admit that's what we're doing and not pretend that we're doing it in order to be just.

David: Yeah. Let's talk about these ideas of retributive and they called retributive just cultures and restorative just cultures. I found that sort of interesting, the labelling of both of them is just in some kind of way, but just in a different style of justice, if you like. A different philosophy of justice.

Before Chapter One, which is the chapter on retributive restorative approaches, Drew, there's a case study that's titled When Does a Mistake Stop Being Honest? The point that Sidney's making in this is that there's no clear line that when someone crosses, which you can say, okay, no, this is really clearly in that category and we're going to talk a few times today about if a system's really working, the line is clear for everyone in any consistent kind of way.

Drew: Just before we dive into the detail of retributive culture, I think it's worth pointing out to our listeners the sort of overall shape of the argument that Sidney is making, because I think it's sort of a double barreled thing. He's laying out these two systems, which are both internally consistent. He doesn't say that a retributive system is illogical. He says it's got a logic to it, this is the logic, these are the steps that go towards completing the logic. But then his criticism is that he doesn't think that we actually implement retributive justice according to the principles of justice self-contained within that logic. 

He thinks that if we were actually following retributive justice logic, then we'd be doing a number of other things that we don't do. Then his second argument is he thinks that even a good retributive system is not as good as a system, that at the very least starts heading towards a restorative system. 

At least at this point of the book, he hasn't made an argument for removing retributive systems and replacing them with restorative. His argument is, look at where you are now. Look at the advantage of restorative justice and move towards restorative within your current system.

David: Yeah, I think Sidney is under no illusion and makes the comment in the book that a retributive style of justice is as old as humanity itself. It's like an eye for an eye and I don't think he's making the claim that our global societies and democracies are going to remove that style of justice so I agree with you, Drew. 

I think he says if there is a place, I think personally knowing Sidney probably doesn't believe there is any place for it personally, but I think he practically accepts the fact that it’s part of our society, but really wants people to do it according to the logic and the principles of how it should be done. 

I think when you follow that logic in the book, which we'll talk about today and you think about your own organisation, you'll probably find that you're falling short on following the logic even if you've got a retributive process, which I imagine most organisations do.

Drew: David, do you just want to take us through the sort of elements that make a just retributive justice system?

David: Yes. Sidney lays it out in a couple of different ways throughout the chapter within, and I hadn't seen since his third edition, I think this is slightly different to the second edition as well. In a retributive system, Sidney’s sort of saying that you go through a process of working at which rule was broken, who did it, how bad was what they did, and therefore, what does the person deserve and which other person gets to decide what should happen to that person. They're kind of the five steps in the retributive process. 

The restorative process is in a sense of rather than starting with which rule is broken, starts with who has been hurt and what are the needs of those people who have been hurt. Whose obligation is it to meet the needs of those people going forward and then what role do others and the broader community and organization play in learning and changing as a result of the event.

Drew: Sid points out that in practice, even though in the, I guess, real world or at least in the criminal justice system, we're typically talking about guilty or not guilty. It's a very hard line with a very high burden of proof. 

Within an organization, we're trying to distinguish between these different categories of behaviour, and we're relying on the ability to draw a fairly clear line that everyone understands. If we draw that line successfully, then everyone, if they haven't done anything wrong, they've got nothing to worry about.

Sid sort of goes a number of times into this attitude of you've got nothing to fear if you've done nothing wrong. People are willing to admit mistakes. They are willing to be honest and open because they know that they haven't crossed that line because that line has been made clear. 

The counterargument to that that's built up over a number of examples and stories and arguments is really saying that we never in real organisations achieve the point where anyone can be sure that they've done nothing wrong. 

There are few reasons for that. The biggest one being that when we talk about safety, we're not talking about elements of a typical criminal offence. We're talking about things that in the criminal courts, we'll be talking about negligence, which is all about meeting acceptable standards. That's a really hard thing to draw clear lines about.

David: Yeah, I found that actually, that linkage to the negligence process within the legal system is really helpful for me anyway to think about where that line should be because it talks about even with a robust and reputable legal process, even with expert lawyers and barristers and judges, even with diligently and deliberately written legal frameworks and legal obligations, there's still these questions like what is the normal standard? How far below was the action from that normal standard? What is reasonably skillful? What is a reasonable care? What is prudent? Was the harm actually caused by the negligent action or not. 

These things get debated over and over again and they get disagreed with by experienced and trained professionals. Yet in our organizations, we think there's three categories of behaviors, an honest mistake, an at risk behavior or reckless behavior. We think that sitting down for 15 minutes with a human resources person, we can put something in a box that the paralegal processing the legal system can't get anywhere near that sort of resolution.

Drew: This isn't an example that Sid uses, but since Sid uses lots of stories, I thought I'll just throw in an example of my own. We've run numerous episodes on the podcast, talked about various aspects of risk assessment. We've talked about weaknesses with risk assessment. We've talked about times when they work well, times when they don't work well, what counts as a good risk assessment. 

Based on the best available evidence, I don't think I could go into an inquiry and say, you know what, there's a clear black and white answer as to whether the reasonable care standard is to do a risk assessment before you do an activity or not. That's the sort of thing that we blame people for, is obviously they didn't care because they didn't complete a risk assessment. When the experts cannot agree with them they should have completed a risk assessment. 

Of course, afterwards, when they're hurt, we'd rather they didn't do the action and we'd love there to be a magical risk assessment that would have stopped them. But saying that that's the clear cut acceptable standard is a really difficult line to draw.

David: I think the discussion that we're having here now in different ways coming out from different angles is when can it be considered appropriate to punish someone for their actions, and what process needs to be around that, and what expectations and sort of steps in that process need to be in place.

Even in the retributive justice system about proportionate punishment needs to be in response to a clear and obvious sanctionable action. People need to know that this is the line, this is the behavior, this is what you can and can't do. You can't drive faster than this. You can't drive without a license. You can't perform this act to another person. I don't think these things are the same things that exist within our organizations.

Drew: Then just for fun, Syd throws in some substantive and procedural justice points that we definitely don't meet in our organizations. For example, the judge needs to be fair and impartial and can't be at all compromised through their own involvement in any of the decision making that might have led up to the events that they are judging over. 

There has to be an opportunity for appeal. Appeal both of the factual determinations and of the punishment that's been decided. There has to be an opportunity to present evidence and call witnesses for yourself. Those are all of the things that we normally expect when we're talking about a just system that gives us the right to punish people.

David: Yes, this substandard justice procedure, procedural justice. It might be sounding like this is a very legal chapter, but it's actually quite an easy chapter to read. It actually really made me, at least, think a lot about all the different angles to come at this and all of the uncertainty around what we typically would not think too much about doing inside our own organizations and say, okay, well, this is fine. We've got a policy. We've got a fair and just culture policy. We've got sets of rules and those rules are really, really clear. They might even be called life saving rules or golden rules. We've communicated with them. We have a process that involves human resources. People sit down, they work it out, and people get a proportionate discipline based on their actions. 

That can feel like a very rational process to have in your organization. I think this chapter will challenge the way that you think about those processes.

Drew: David, I know that some of our listeners at this point are going to be thinking that we're talking about the difficulty in drawing the line and how hard it is and the processes that need to go around it, but surely there are cases that are clearly over the line. Everyone has at least heard of such cases even if they don't know oneself that they can immediately point to you. 

No matter how grey the line is, there are some people who have obviously at various times stepped well over it who have done things that are beyond that line who, even under a process that has all of that procedural fairness, will still obviously have failed to meet a very clear standard. I think it's really important to show that the whole point of this argument in the first place is not to say there do not exist people who under a fair system might deserve to be punished. 

The whole point is that the claim, remember, is that if we draw a clear line, then people will go into that process knowing that they haven't done anything wrong. They're going to be open, they're going to report, they're going to disclose their own mistakes. 

Those won't be the people who have gone well over the line. Those are the people who are really close to the line. No number of cases that are very clear fixes the problem with the line itself being ambiguous if it's going to achieve our purposes.

David: Yeah, and I think some people might think that they have that line clear and that line is drawn at the one percent, which is that there will be no consequences unless we decide that the action was known, was reckless, and was right up there. In the minds of management, in the minds of maybe some safety organizations, they've done that. They've opened everything else up. They've just put the line for that 1%.

I think unless people and as we go deep inside organizations, with some of the work that we do is that maybe in the manager's head, that may be very clear, but that hasn't been explained. It's not explained well enough. The workers don't potentially believe that actually. They don't believe in substandard justice. They don't believe the procedural fairness. They don't believe that that's the way that the process is going to actually work so it doesn't happen.

Drew: David, I'm willing to bet that people who think that they've got a very clear line are also drawing that line somewhere around a concept of golden rules, or critical controls, or things that have been very clearly laid out and clearly explained to the workers are unacceptable behaviors. 

Now, I don't know if any of our listeners are sort of in that category or perhaps our listeners are having to make an argument to people who think that I'm not going to claim, although I think I could truthfully claim, that your golden rules are being violated all over the place, that if you think not, you just don't know about them. 

What I will say is imagine the person who thinks that the golden rule has had to be violated, who thinks that there is an exception to the golden rule that needs to be talked about to make sure that appropriate controls are decided that are not the golden rule. 

How does that person start the conversation if the organization has been so clear that even admitting that there might be times when the golden rules might not be followed means that you're crossing a very, very clear bright line. 

David: I think that's where, going back to which I didn't finish the case study before Chapter One is that any time we're doing retributive justice and applying backward looking accountability to behaviors, there is no clear line because it always depends on how the story gets told. Which means step backward looking accountabilities is always an uncertain and dangerous game because whose voice and whose story is going to be listened to. 

I suppose that's one of the arguments that he makes for a restorative just culture and forward looking accountabilities, that the best thing that the people who are involved in any kind of event or action, the best thing they can do on that very first day is teach the organization exactly what happened and why they did what they did. 

I think that's what you're getting at Drew, that those systems putting any kind of downward pressure on that means that you are sort of compromising your opportunity to get that full story.

Drew: This might be a good time to move on and talk about a bit of the detail of restorative cultures. As a starting point, I think it's worth indicating that restorative justice is not this airy fairy hippie thing. It's a process that often has very strictly defined rules and steps around it. It's been used a lot, particularly in things like juvenile justice, and it's very very hard for everyone concerned in the process. No one gets off easy just because it is restorative justice. 

I've heard stories of people saying would you please just lock me up instead of making me have to sit down and talk to this person and tell them what I did and listen to their story.

David: Look, I think we have examples increasingly, at least in the Australian legal system, where companies can enter into enforceable undertakings to avoid prosecution under the health and safety legal system. 

Enforceable undertaking is exactly that, it's designed to be a forward accountability. There's a 6, or 12, or 18 month plan of investment and action in relation to safety to make improvements to the organization and improvements to the industry safety performance instead of going to court and paying a fine. 

In some regards, Drew, just thinking about it now, that regulatory process is designed to be like a restorative process. Who's hurt? What are the needs of the people within this industry who might be second victims or others? Whose obligation is as well as the organizations and what are they going to do going forward? They might be retraining and contributing to the industry body of knowledge and new technology and equipment and things like that. I don't know, Drew. Would you say that is sort of an application of the restorative principles?

Drew: Yes, it's got its weaknesses and it's got its difficulties with how it's applied in practice. But, yes, it has a number of the elements of a restorative system. One of the big ones that Sidney emphasises that I think doesn't crop up there, is Sidney emphasises the importance of all stakeholders to share their stories with each other. 

It starts right in the investigation process, not just in the consequences. In particular, most ideas of restorative justice still incorporate this idea that there is an offender, at least there is someone who has done something that causes harm. That person is relabelled from an offender to being a second victim. 

The first victim is the person or persons who have suffered consequences directly from the experience. In a workplace accident, they're the person who got hurt at work. 

The second victim is someone who feels responsible for the person getting hurt. Now, they could be responsible. They could just feel responsible. Anyone who either as a result of the accident or as a result of what happens afterwards feels some responsibility for what has happened. They are the second victims. 

Then there is a community in this case, the organization, who are part of the process as well. All of those parties, the first victims, the second victims, and the community need to share their stories, and part of that is revealing the harm that they have suffered and putting on the table what they think needs to be done in order to repair that harm.

David: Let's step through this, Drew. I'm just slightly wondering if all of our listeners will be still with us on restorative just cultures because I think sometimes people think that restorative just culture is, and you've done a great job of explaining some of the clear logic around it, and I just want to be clear that a restorative just culture is not just what people might think the opposite of a retributive just culture, which is that there's no individual that's held accountable and we'll talk about that more in a minute, and there's no consequences of any kind. It's just people can do anything and it's a great blame free environment. Life goes on no matter what the person does.

Maybe I'll start with a definition, Drew. The definition of restorative just culture is a process where all stakeholders affected by an injustice have an opportunity to discuss how they've been affected by this injustice and then to decide what should be done to repair the harm. This is like you’re saying, Drew, a very collective process with these first, second victims, and the organizational community more broadly.

Drew: David, I think you make a very important point in that definition, which actually comes from the same assumption as a retributive justice system. In that there is an assumption that there has been an injustice. The starting point for this whole process is someone got hurt and that's not okay.

In order to know who gets involved in the process, we've got to identify the people who caused that hurt because we want to make them involved in the process. We're still saying, this accident has happened. We're still saying these are the people who caused the accident. These are the people who suffered from the accident and we're getting them around a table to talk about what we do next.

David: I think in a real practical setting, if someone gets injured, say, some sort of release of energy in some major hazard facility and then you think, they're the first victim. They're the one who's been injured. Then when we think about the second victim, the people who feel responsible. It could be work colleagues. It could be the immediate supervisor, it could be the maintenance engineer that did or didn't do something with that system. It could be the permit to work officers who maybe didn't check something. It could be the safety person who didn't review that particular risk assessment the day before. 

You get all of these stakeholders in and around associated with the activity who suffer and feel responsible and want to contribute to making things better. If your investigation process is just retributive, it will just find the person who gets hurt. It might find an immediate connection with that person, a sign, some sort of punishment, and the process moves forward and all the people don't have the opportunity to move forward.

Drew: There are two things that come out of this that Dekker thinks are very important. The first one is that this simply telling and listening to the stories is a positive process in itself and can work to reduce the total amount of harm that is experienced. 

One of the challenges of most investigations, regardless of whether they were attributive, is they tend to need to coalesce around a single version of the facts. They tend to need to sort of find out what did happen because they need to assign consequences for what did happen. The result of that is that anyone whose story differs from that final version is someone who, from their point of view, has not been heard. Their version has been dismissed, it hasn't been included in that final account. 

The restorative process doesn't need that because it doesn't need to coalesce around an agreed version of what happened. All we need to agree on is what is the harm and what are we going to do next so everyone's story can be accepted, even if they contradict, even if they don't quite agree. It's got these neat little rhetorical things. He says that in a retributive just culture, an account is something that you pay for. In a restorative justice culture is an account is something that you tell and you learn through the dialogue.

David: We might as well get to this is key claim about that neither a retributive or restorative just culture, as Sidney says in his book, lets people off the hook. This is not about, I don't think in my mind that we talk anywhere about blame free. I mean, blame is a word, but we are trying to say understand the act, understand the hurt, understand the people involved, and understand what to do next.

Sid sort of expects retributive cultures and says, okay, so in retributive culture we want to know how the person compensates for what they've done. Someone's caused some hurt to another person so the system causes hurt to that person. People feel that the person was held accountable. They feel satisfied that the person was held accountable because they were punished and this is a way of the community demonstrating to others that it doesn't accept what the person did. 

To counteract this common claim that in restorative cultures, there's sort of no accountability, Sidney argues that no. In restorative cultures, what we do is we start with how do others understand why it made sense for the person to do what they did and how could this be put in the same situation in the future. Offenders are not seen as the causes of trouble, but they're the recipients of organizational, or operational, or design, or other structural and systemic issues and these could set others up for failure as well, if not addressed.

Restorative cultures, therefore, are more likely to get to some of these systemic issues that triggered the incident.

People get to tell their account and express remorse so people can actually go through that conciliatory process of expressing the remorse for what's happened. Like we'd mentioned, Drew, the affected people can agree what needs to be done to not only move the system or the organisation forward, but also to restore trust in relationships and in other aspects of the social fabric of the organisation as well.

The final point is that the community demonstrates that it expects people to be accountable by getting them to reflect on their behaviour, share their insights, and can contribute to the benefits for others.

Drew: David, I'd like to touch here a little bit on the idea of backwards versus forward accountability. That's the language that Dekker and people often use, is that retributive justice is about backwards accountability. Restorative justice is about forward accountability. 

We had a comment from James suggesting that maybe forward accountability is really just a bit of a rhetorical trick, that ultimately all accountability is backward and if we talk about forward accountability, we're really just delaying backward accountability. I think that's a fair point and I think it's something that does arise when we don't get our justice process right. 

You can imagine a circumstance where we have a very blame free type system that's moving towards restorative, where someone makes a mistake and their forward accountability is I'm not going to do that again. Then next time they've done it, we then punish them for it. That would be a good example of where we were trying to be forward accountable but really all we were doing was delaying backward accountability.

I think what's expected under a good restorative justice system is much more specific in its accountabilities than we have with backward accountability. 

There are a few particular things that you need to do to meet your obligations, and I personally prefer obligations to accountability anyway. I just think it's a clearer term. You're obliged to take part in the process, that's a clear expectation of you and I think it is a fair expectation. It's an expectation that you can meet if you are not willing to engage in the process. If you're not willing to share your story about not willing to talk about what happened, then you are not willing to take part in restorative justice.

Very often when people are not willing to participate in restorative justice, we're forced to switch to retributive justice and I think that's actually fair enough. If people decline to take part, there's not much we can do about it. 

The other thing is that the process creates actions in the same way that an investigation creates actions. Those actions get assigned to the stakeholders who have participated. If you think about typical recommendations from an investigation that's done well, this is much more specific. We're not saying live up to a standard. We're saying as a result of this, you promised that you would attend toolbox talks and tell your story to other people. I think that sort of accountability is much fairer and easier to meet accountability than a promise not to make the same mistake.

David: Yeah, I agree, Drew. I must admit, when you started then, I didn't quite follow the whole forward looking accountability just delayed backward accountability. I sort of found myself in an infinite loop there for a little bit but the more you explained it, the more I sort of caught on.

The way that I practically think about this is that if you've got a retributive system and something's happened and the individual involved in the action received some kind of punishment, I can't practically in my head work out how in any way that you've made safety better in the future.

You might say, well, that person has been on a final warning, so maybe they'll behave a little bit better and you might say, okay, yeah, okay and other people will see that that person got a warning or dismissal and maybe they'll behave better for a day or an hour.

The impacts on reporting, openness, and trust, relationships, and climate and all of those things, I just can't find how that system makes the organization safer but unlike the practical side of restorative just culture is about going through the process that we've described and then hopefully with the work group together to say, okay, so where is the line around this activity? It might be someone's done something without isolating a piece of equipment and that's some sort of rule.

Getting all of the stakeholders involved and going, what are the boundaries around this activity? How is this work going to be performed in the future? How are we going to talk about it when work is different and unable to be this? What are the shared expectations of each other? Then I think you've got a really clear primary line around that activity, a really clear social contract with everyone involved.

You've actually got quite a really solid and specific accountability for the work going forward and a lot of openness, trust, and alignment. I suppose that's how I practically see it, Drew. I'm not sure it clearly aligns with the logic, but that's how I've always thought about it practically.

Drew: David, I think that makes sense. My only point of discomfort is I think that's what people sometimes think they're doing when they identify critical controls and when they identify golden rules. They think they've been through that process. They have actually agreed expectations and made those expectations clear. That is the same sort of forward accountability that you're talking about.

I think it's the opportunity to honestly and openly share stories that goes into that process after an incident where we have good restorative processes that lets that be a much more reasonable expectation that we're placing on people. 

Too often I've heard some people say, look, we've carefully thought about these golden rules. We've only put in place the things that we all agree are absolutely right. The CEO has then come onto the stage and said, right, this is the law and you realize that what some people think is a fair process actually is a real power imbalance in it.

David: Yeah, and I suppose the above example was a little bit narrow in the sense of all the assumptions that were in my mind around that process. But, yeah, I can understand how the next argument could have been. Well, someone's done something they shouldn't have and now they've been told not to do it then a week later, when they do it again that's the time to be retributive and that's kind of not what I was trying to describe. But I was trying to just get a little bit practical with the example. 

Drew, I suppose is there anything else you want to say about restorative and retributive cultures? It's kind of like if you pick up this book and it is rewritten or it's basically it might be a new chapter in the third edition. Read the chapter. It is a really useful chapter to read if you don't read any of the rest of the book. Anything else you want to say?

Drew: The only thing I'd say is that if you don't want to pick up the book, there's one that's fairly easy to find versions of online called the Little Book of Restorative Justice, which just gives a different account of those same principles of what is restorative justice and how it works. If you want to learn about it without reading Sidney Dekker. 

Should we move on to the next chapter, David? I know we're running a little bit short on time, but we each talk about 10 pages of notes on that previous chapter and I think we've got less than one between us on the next one because we just said, yeah, we've read all this before.

David: Drew, I'm still not sure. The chapter is titled Why Do People Break Rules? It comes after the retributive and restorative. I suppose I think our episode two, Drew, had almost the identical title save one word about why people break rules.

This isn't the most comprehensive description of the issue and I think Sidney, all he's trying to do is simply make one point. That rule is not black and white. If you get through the retributive and restorative chapter and Sidney's a bit worried that you say, yeah, yeah, but for these life saving rules that are black and white, it's fine for us to have a retributive system and for anything else that's grey, we'll, of course, always be restorative. 

I think what Sidney's trying to do with this chapter that comes after is go hang on a minute, if that's what you're thinking when you just read about retributive justice, let me just tell you how what you think of black and white rules are probably anything but black and white rules for all of these reasons.

Drew: David, I think that is a fair characterization of the entire message of the chapter. I personally think that once you've gone through all of these different theories and I agree that there's no comprehensive but there are still sort of six different theories that Sid includes in there. I think he endorses five out of the six. One of them, by the way, is the bad apple theory that people are bad or incompetent and I think he is pretty dismissive of that one. 

All of the rest of the meetings have some truth to them. The more and more you read about how humans behave and how they make sense of rules and how they learn from their environments, the less and less you think that free will exists. 

I mean, there is a real risk that you go too far down there. I think this is one thing that makes people a bit sceptical of this type of argument is that there's a point where you start seeing everything as structurally influenced and saying, well, humans aren't responsible for their own actions at all. It's entirely determined by external things. 

I think the other way of looking at it is, okay, sure, we accept that humans are responsible for what they do, but if they're responsible for it, then we don't have much control over that part that they are responsible for. What we have control over is all of those structural influences that cause them to behave in particular ways. There's not much we can do to influence someone's own choices, but there's a lot that we can do to influence the processes and environment around them.

David: I think you're exactly right, Drew. I think you're right and we see this sometimes with these investigations where organizations really try hard not to pay any attention to what the individual's contribution and try and look at the organizational factors and stay only in the organizational factors and sort of overcompensating that space even though most companies probably don't do the structural things enough.

The way that I see is that there's always freedom of action. There's always, I would say always, always is a bit of a bold statement, but I'd like to think that most of the time there's a final say that the individual has but those structural forces, I suppose, create the freedom of action that that person has in that final choice. 

These are all the pressures and all the structural pressures and how big is that? How wide and where is that freedom of action? Is it just a choice between two bad situations or is it actually a broadly set of safe choices that they can make?

Drew: David, I think you've said this before, and I don't know if you're willing to stand by it at this point, but to the extent that this comes down to the actual individual, it's our job to get our hiring processes right, that we don't hire those people.

If we've had someone who we have hired and thought they were right for the job and have not got rid of them for any other performance related reasons, kept them in the organisation, and our one chance to decide that they are just so bad that they are fundamentally a bad egg is after an accident. Then there's a lot of our own HR processes that just aren't up to scratch.

David: Yeah, I think there are structural processes. I think I've said, I'm not sure on the podcast, but you've got a whole lot of people, management processes in your organisation that select, manage, develop, and monitor your organization. You know people in your organisation and support them. You don't need to fix all of those processes with your safety investigation process. In fact, that's not the place to fix all of those things.

Drew: Should we talk a little bit about going forward where we're headed?

David: Yeah, let's do that. I think we didn't talk about rules with that chapter and you can pick it up and read it but I think that that black and white thing is that just be careful when you think that your rules are black and white. This chapter lays out  all the reasons why they may not be as well. Not everyone in your organisation might see them the way that you might see them.

Drew, we're going  to bounce forward to next week and cover the remaining three chapters together. I put them three for next week, safety reporting and honest disclosure, the criminalization of human error and what's the right thing to do because I'm not sure some of the some of the criminalization aspects and a few things, I'm not sure that we may not find all of it interesting to discuss, but we'll round out the book next week.

Drew: Practical takeaways, David? I think the easiest way is just to talk about what Syd's takeaways are and then make a few comments along the way if you've got them. 

David: Great. 

Drew: Since his take away the sort of in the form of questions to ask yourself and to ask about your organization. If you're in an organization and you've got a retributive justice system and you think it is a just system, then he says, ask yourself, is the judge independent? Because a just retributive system requires the judge themselves to be impartial. 

Also, does the judge know enough about the messy details of how work usually happens? Because you're asking the judge to draw a line between what's acceptable and not acceptable. To do that, they've got to know what's normal. They can't be working off some imaginary standard. Is there an opportunity for appeal? This is to do with you claiming to have substantive justice. 

Then he said, is the whole process designed and advertised clearly, including all the rights of someone in the process and he doesn't say it, but I would add to that one. Do we always follow the process that we have designed and advertised clearly because I know a lot of organizations have things like the person involved in the accident will always be included in the investigation. 

When we go back and audit who was actually in the meetings, we discover, oh, we let that person go so they were fired before they had a chance to be the person participating in the meetings. We make the promises sometimes without living up to them.

David: Yeah, Drew. I think it’s a great question to ask and I think that is very hard to think about in practice that a very few people will find, I suspect that people will find that their processes for a little bit short and closing that gap will be very problematic.

There's a set of questions that they don't like to run through about if you think you're moving towards a restorative process or you think you might be doing some of those things, there's a set of questions about how restorative you are. Do you want to run through those?

Drew: Yeah, I think these are actually a little bit easier. I think some of those questions about retributive justice are a little bit of gotcha questions that you're very likely your answer is going to be no and there's nothing you can do about it. I think a lot of these restorative ones, you can say, well, maybe we're not, but we could try more. 

The first one is, does the process recognize harms, needs, and causes? That's always something that you can add into any process. It's just adding a bit of thought about who is actually being harmed, particularly thinking about first and second victims. 

Second one is, is the process adequately victim oriented, including second victims? Who do we consult? Do we think about what their experience is like in this process? Are we taking care of them throughout the process?

Our practitioners are encouraged to realize their own contribution to the harm. David, I actually couldn't quite get when he said practitioners here, do you think he was talking about safety practitioners?

David: I don't think specifically. I don't think that Sidney really ever worries too much about the safety practitioner but I think other times it might even be a substitution for professionals, because normally he's talking about professionals here, people in their professional roles, like managers, engineers and other people.

I think what we're talking about here is like you made the comment about maybe even last week about how often do you see an accident investigation report where there's a finding or a recommendation about what the safety team did or didn't do that might have contributed. I think this part of the process here is really about encouraging all potential practitioners and professionals associated with the work to realize and reflect on their own possible contribution to the situation.

Drew: I think there's also hints towards whether we've achieved the type of process that we imagine we have, because in a truly just process, people should be stepping forward and volunteering and saying yeah, I recognize that I could have done better. An accident happened and I've got something to do with that. Instead of everyone keeping their heads down and hoping that someone else has the just culture process applied to them.

David: Yeah, I think about the power of an organisation. If all of those people in all of those related roles reflected and then came forward and told their story and and thought about what they might do in a sort of a forward accountability type of way.

Drew: The remaining points is are all relevant stakeholders involved? This is about broadening that circle of people, not just who are witnesses, but who are actively involved in the investigation, in the decision making. Then how do we involve them? Is it based on dialogue, participation, and collaborative decision making?

A key thing there is to look for whether the actual process is you're making recommendations up to a single decider or the decisions are made by the group of people. Does it identify and address deeper systemic issues that contributed? That's a bit of an outcome focused one that could be true, I think of any process that is always sort of worth asking whatever our process is, do we routinely actually find and address deeper systemic issues? Is the process respectful to everyone involved?

That respect is something that we often don't necessarily think about but just you, just that attitude of going into it with respect, I think can significantly improve investigations and reduce the harm that they can sometimes cause.

David: I think, Drew, I agree with you. I like the way you framed at the very start this idea of Sidney. I don't think he's practically saying get rid of all your retributive justice and do restorative justice kind of overnight. I like the way you say this sort of moving towards these principles.

Even if you look at any of your organization responses to events, and I'm not sort of talking about the disciplinary concerns, but the whole system of reporting, investigating, and managing unwanted actions or unwanted outcomes. We still work with organisations that make the people involved signed statutory declarations of witness statements.

If you ask the question of is it based on dialogue, participation and collaborative decision making, is it respectful to people involved? You're probably not going to have someone sit across the table and say, can you write and sign your version of events on this statutory declaration and then never see them again.

I think there's a lot you can do within your existing incident management processes based on kind of these restorative principles that we've talked about today that's at least going to make your initial investigation process more effective, even if you don't really touch what you do from a disciplinary point of view or a punitive point of view.

Drew: David, you've added at the end of the sort of two sets of questions, a meta question, because they sort of assume that you're either currently retributive or trying to be restorative and you've just got to note that if you're not doing one of the two, then you might be doing something that's unjust.

David: Yeah, I hadn't seen it before nuance in the writing where I was always of the view that the idea of just culture was restorative. There's a subtlety and I don't know whether you agree with me, Drew, where Sidney talks about retributive just cultures and restorative just cultures actually using those words. It was only when I saw that the just culture associated with the retributive thing saying that is a system of justice, that retributive cultures but this is the logic and the restorative system of justice.

I don't know if Sidney means for it to be kind of just just culture and do one or the other but whatever you're doing, make it just even though he'd prefer you to do restorative. What I said is, if you're not following the logic of either of those two just culture approaches, then you are likely to be doing something in your organisation that is very unjust.

Drew: I guess the idea of having a just culture only emerged relatively recently. There will be organisations who haven't deeply thought at all about the fairness or justice of their investigation processes, and it's a natural sort of first step that when people start thinking about this, they read the works of reason, or David Marx, or things that are derived from their ideas and end up in this retributive just culture model of classifying errors into different types of culpability and deciding the emotional responses.

David: This was always my misinterpretation. You always misinterpreted people who said we've got a just culture and I was always going, well, you don't, because it's not restorative. But then I only realized that, well, actually, Reason’s original work was nothing about restorative just culture, Reason’s original work was actually trying to get the retributive systems of justice to be more just.

Drew: Yes, absolutely.

David: I'm late to the party, but that's right. I learn something every week.

Drew: I guess that's it for the episode. We've gone a little bit long, but that's okay. Please do share your thoughts and questions with us on LinkedIn. Definitely based on when we're recording, we'll have time to see your responses before we get the next episode recorded. 

There's also a link in our LinkedIn header. If you go to the podcast on LinkedIn, if you go to the Safety of Work page, you can link through to an online portal where you can suggest and vote for future episode topics. We're at that sort of point where we're about to decide the next few episodes what topics we're going to cover. Please do hop on there if you've got some ideas and either put your ideas or vote for the ideas that are there and we'll try to comply.

David: There's a lot of votes for life saving rules and critical risk management and there's not a lot of empirical work in the safety science literature. Still looking, but coming up with donuts at the moment in some of those areas that we know and lots of people want to hear about but we'll keep trying.

Drew: If you are out there and you're thinking of doing a PhD in safety-

David: Well designed research in some of these. No, look, if you got some students or some aspiring researchers, we're probably getting close to having a bit of an idea about where some of the really useful gaps in the literature might be if anyone is put in a research agenda together. That's it for this week, Drew. 

We hope you all found this episode thought provoking and ultimately useful in shaping the safety of work in your own organization. Send any comments, questions or ideas for future episodes to us at