Why Safety Policy Cannot Be Enforced

Why Safety Policy Cannot Be Enforced

By OffRoadPilots 

Conventional wisdom is that a safety management system

(SMS) policy must be enforced for compliance. There are

several reasons why an SMS policy cannot be enforced,

and the two main reasons are that an SMS enterprise

works within a just culture and root cause analysis of

special cause variations.

JUST CULTURE

A just culture refers to an organizational environment

or approach that promotes fairness, accountability, and

learning when dealing with human errors, mistakes, and

system failures. The concept originated in the field of

aviation but has since been applied to various

industries, including healthcare, nuclear power, and

others where safety is critical.

In a just culture, there is a balance between holding

individuals accountable for their actions and

recognizing that errors often result from systemic

issues rather than individual negligence. The goal is

to create an atmosphere where personnel, including

accountable executive (AE) and mangers, feel

comfortable reporting errors and near misses without

fear of punitive measures, fostering a culture of

openness and transparency.

Fair and Just Accountability: Individuals are held

accountable for their actions, but the level of

accountability is proportional to their control over

the situation and the foreseeability of the

consequences. A person may be a second victim and

feeling responsibility and regret for what occurred and

be held accountable by being asked to share their

personal feelings and story with coworkers and

management.

Learning from Mistakes: The focus is on learning from

errors to improve systems and processes rather thanblaming individuals. This involves conducting thorough

investigations to understand the root causes of

incidents.

Open Communication: Encouraging open and honest

communication about errors, near misses, and safety

concerns without fear of retribution.

Continuous and Continual Improvement: Actively seeking

ways to improve and expand systems and processes to be

prepared for special cause variations and being

proactive for future errors.

Implementing a just

culture contributes

to a safer and more

productive work

environment by

fostering trust,

learning,

accountability,

information sharing,

and encouraging

reporting, and

facilitating the

identification and

correction of

systemic issues that may contribute to errors.

SPECIAL CAUSE VARIATION

Special cause variation, also known as assignable cause variation, refers to variations in a process that are not inherent to the process itself but are caused by

specific, identifiable factors. These factors are

typically external and unusual occurrences that can

have a significant impact on the performance of a

process, leading to deviations from the expected or

standard outcomes.

.Identifiability: Special causes can be traced back to

specific events, changes, or factors. Unlike common

cause variation, which is inherent to the process and

represents the natural variability, special causes have

a distinct origin.

Intermittent: Special cause variation tends to be

sporadic and intermittent. It doesn't occur

consistently over time but rather as a result of

specific events or conditions.

Impact: Special causes can lead to significant

deviations from the expected performance of a process.

This impact can be positive or negative, but it is

usually more pronounced than the typical fluctuations

caused by common causes.

Correctability: Since special causes are typically

associated with specific events or factors, they are

often correctable. Identifying and addressing the root

cause of special cause variation can help improve the

overall stability and predictability of a process.

Statistical process control (SPC) is crucial for a

successful safety management system (SMS).

Understanding and comprehend special cause variation,

and distinguishing between special cause and common

cause variation is crucial. Control charts are used to

monitor and analyze process performance, helping to

identify when special cause variation is present so

that appropriate corrective actions can be taken. This

approach is fundamental to the concept of continuous

improvement in various fields, such as manufacturing,

healthcare, and business processes.

ENFORCING SMS POLICY

Enforcing an SMS policy refers to the process of

ensuring compliance with the policy. This involves the

implementation of measures to make sure that the

accountable executive (AE), managers, SMS manager andthird-party contractors adhere to the prescribed

guidelines of the policy. Enforcement mechanisms are

established to maintain policy compliance, order,

promote safety, and uphold the principles of a just-

culture.

MONITORING AND SURVEILLANCE

Enforcement often begins with the monitoring and

surveillance of activities to identify any violations

and non-compliances.

SMS policy

surveillance refers

to the systematic

monitoring,

observation, and

supervision of

accountable

executive, managers,

SMS manager and

third-party

contractors, places,

and activities for

the purpose of

gathering

information,

maintaining SMS policy compliance, and influencing

behavior. SMS surveillance involves the use of various

technologies, methods, and systems to collect and

analyze data with the aim of preventing unacceptable

behaviors and unacceptable activities. Surveillance can

be conducted by colleagues who are required by an SMS

enterprise to say something when they see something, or

the accountable executive, managers, or an SMS manager.

Surveillance takes different forms, including visual

observation, electronic monitoring, and data analysis

in a formal format with notice, or informal without

notice or knowledge of ongoing surveillance.Surveillance is very different from audits and inspections.

Audits and surveillance are both activities that

involve the systematic examination or monitoring of

processes, systems, or activities, but they serve

different purposes and have distinct characteristics.

Purpose Audits are conducted to evaluate and verify the

adherence to established standards, policies, or

procedures. They aim to ensure compliance, identify

areas of improvement, and provide assurance that

processes are functioning effectively.

Surveillance is generally focused on monitoring ongoing

activities to detect deviations from standards,

identify potential issues, and ensure that operations

are in compliance with established criteria.

Scope

Audits are typically more comprehensive and thorough in

scope. They involve a systematic examination of various

aspects, including documentation, processes, controls,

and outcomes.

Surveillance tends to be more focused and may involve

real-time or periodic monitoring of specific activities

or areas. It may not cover all aspects comprehensively

but rather concentrates on key elements.

Frequency Audits are often conducted periodically or at scheduled

intervals. They may be annual, bi-annual, or occur

based on a predetermined audit schedule.

Surveillance can be ongoing and may occur more

frequently, depending on the need for continuous

monitoring or risk assessment. It can be daily, weekly,

or even in real-time.Nature Audits are usually planned and conducted with a structured approach. They may involve a detailed

examination of records, interviews, and site visits.

Surveillance can be planned or unplanned, and it may

involve more informal monitoring. It can be adaptive to

changing circumstances and may involve continuous

observation.

Reporting

Audits result in formal reports that outline findings,

conclusions, and recommendations. These reports are

often used for accountability, improvement, and

decision-making.

Surveillance activities may lead to immediate action if

issues are detected, but they may not always result in

formal reports. Reporting may be more ad hoc or focused

on addressing specific concerns.

While both audits and surveillance involve monitoring

and examination, audits are typically more structured,

comprehensive, and periodic, with a focus on compliance

and improvement. Surveillance, on the other hand, is

often more ongoing, adaptable, and focused on detecting

deviations and immediate issues.

There are five key components of surveillance.

Physical Surveillance

This involves the direct, in-person monitoring of

individuals or locations. It can be conducted by law

enforcement, private investigators, or security

personnel.

Electronic Surveillance

This involves the use of technology such as closed-

circuit television (CCTV), drones, satellites, andother electronic devices to monitor and record

activities.

Communication Surveillance

Monitoring of communication channels, including phone

calls, emails, and internet activities, to gather

information or identify potential threats.

Data Analysis. The collection and analysis of large amounts of data to identify patterns, trends, or anomalies. This may

involve the use of algorithms, artificial intelligence,

and machine learning.

Social Media Monitoring

Tracking and analyzing information shared on social

media platforms to gain insights into public opinion,

detect potential threats, or gather intelligence.

Surveillance can be both overt and covert, and the

ethical implications of surveillance practices are

often a subject of debate. Overt behaviors are actions

which are visible and can be seen directly, such as

physical movements and verbal statements. Covert

behaviors are hidden actions and processes that occur

inside the mind and cannot be directly observed by

others.

INVESTIGATION

Once potential SMS policy violations are identified,

the enforcement department may conduct investigations

to gather evidence and build a personal case against

the violator.

Most SMS enterprises do not operate with an enforcement

department to enforce their SMS policy. Conditions

accepted by most SMS enterprises are that conditions

under which punitive disciplinary action would be

considered (e.g. illegal activity, negligence, or

wilful misconduct) are clearly defined and documented.However, the regulatory requirement is not to define

conditions for punitive actions, but to including the

conditions under which immunity from disciplinary

action will be granted.

Illegal Activity

Illegal activity refers to actions or behaviors that

are prohibited by law. These activities are typically

outlined and defined in a legal system's statutes,

regulations, or ordinances. Engaging in illegal

activities can result in various consequences, such as

criminal charges, fines, imprisonment, or other legal

penalties.

SMS enterprises with

an SMS policy to

consider punitive

actions for illegal

activity, must

define these actions

and associated

punitive actions.

Below is a list of

21 illegal actions

for an SMS

enterprise to

include in their SMS

policy.

Theft: Unlawfully

taking someone else's property with the intent to permanently deprive them of it.

Burglary: Illegally entering a building with the intent

to commit a crime, typically theft.

Robbery: Using force or threat to take someone's

property directly from them.

.Fraud: Deceptive practices to gain something of value,

often involving false information or misrepresentation.

Embezzlement: Misappropriating funds entrusted to

someone for personal use.

Money Laundering: Concealing the origins of illegally

obtained money, typically by means of transfers

involving foreign banks or legitimate businesses.

Extortion: Obtaining something, such as money or

property, through coercion or threats.

Assault: Intentionally causing apprehension of harmful

or offensive contact.

Battery: Intentionally causing harmful or offensive

physical contact with another person.

Kidnapping: Unlawfully taking and holding someone

against their will.

Arson: Intentionally setting fire to property.

Drug Trafficking: Illegally manufacturing,

distributing, or selling controlled substances.

Cybercrime: Criminal activities conducted through the

use of computers or the internet, such as hacking,

identity theft, and online fraud.

Terrorism: The use of violence or intimidation to

create fear for political or ideological purposes.

Forgery: Creating or altering documents with the intent

to deceive.

Counterfeiting: Producing fake or unauthorized copies

of goods or currency.Racketeering: Engaging in an organized and illegal scheme, often for financial gain.

Hate Crimes: Crimes committed against individuals or

groups based on their race, religion, ethnicity, or

other protected characteristics.

Blackmail: Demanding something of value under the

threat of revealing damaging or embarrassing

information.

Stalking: Repeatedly following or harassing someone,

causing them fear or distress.

Public Order Offenses: Crimes that disrupt public peace

and order, such as rioting or disorderly conduct.

It is also important to note that laws can vary between

jurisdictions, and what may be illegal in one place may

not be illegal in another. Additionally, laws also

change over time, so staying informed about local

regulations at any airport, and anywhere airlines

operate globally is crucial. A few years back a flight

crew was detained for compliance with their own SMS

policy, which was not accepted in their local

jurisdiction of operation.

Negligence

Negligence is a legal concept that refers to a failure

to exercise the level of care that a reasonably prudent

person would have exercised in similar circumstances.

In other words, it involves the failure to act with the

degree of care that a reasonable person would have

exercised under the same circumstances, leading to harm

or damage to another party.

SMS enterprises with an SMS policy to consider punitive

actions for negligence must define these actions and

associated punitive actions. Below is a list of 21negligence behaviors for an SMS enterprise to include

in their SMS policy.

Negligence refers to

the failure to

exercise the level

of care that a

reasonable person

would exercise in

similar

circumstances,

resulting in harm or

damage to another

party. While

specific legal

elements may vary by

jurisdiction, here

are 21 general points often associated with negligence:

Duty: The defendant owed a duty of care to the

plaintiff.

Standard of Care: The defendant breached the standard

of care owed to the plaintiff.

Foreseeability: The harm caused was foreseeable.

Causation: The defendant's breach of duty was a direct

cause of the plaintiff's injury.

Actual Cause: The defendant's actions were the actual

cause of the harm.

Proximate Cause: The harm was a foreseeable consequence

of the defendant's actions.

Injury: The plaintiff suffered an actual injury or

harm.

Breach of Duty: The defendant failed to meet the

standard of care expected.Expertise: If applicable, the defendant had a duty to use their professional expertise.

Reasonable Person Standard: The defendant's actions are

compared to what a reasonable person would do.

Control: The defendant had control over the situation

that led to the injury.

Special Relationships: Certain relationships (e.g.,

airline captains - passengers) may impose a higher duty

of care.

Special Knowledge: The defendant had knowledge that the

plaintiff did not possess.

Res Ipsa Loquitur: The thing speaks for itself; the

injury wouldn't have occurred without negligence.

Warning: The defendant failed to provide adequate

warnings or information.

Recklessness: The defendant's actions demonstrated a

reckless disregard for the plaintiff's safety.

Informed Consent: Failure to obtain proper consent for

certain activities, especially in medical contexts.

Public Policy: A person’s actions violated the SMS

policy, which is a public policy supporting safety

regulations.

Violation of Statute: The defendant violated a statute

or law.

Continuing Duty: The defendant had a continuing duty to

protect their customers from harm.Emergency Situations: The standard of care may be adjusted in emergency situations, but negligence still

requires reasonable actions.

It's important to note that the specific elements and

terminology may vary by jurisdiction, and legal advice

should be sought for specific cases.

Negligence is a common basis for personal injury

lawsuits, where individuals seek compensation for

injuries or losses caused by the negligent actions of

others. It is an important legal concept in tort law,

which governs civil wrongs and provides a framework for

individuals to seek remedies for harms caused by the

negligence of others.

An SMS enterprise with negligence as an exemption to

their non-punitive SMS policy must accept

accountability for how they reach their decision.

Wilful Misconduct

Wilful misconduct refers to intentional or deliberate

actions that are performed with knowledge of the

potential harm they may cause. The specific points or

elements of wilful misconduct can vary depending on the

context, such as legal, ethical, or professional

standards.

SMS enterprises with an SMS policy to consider punitive

actions for wilful misconduct must define these actions

and associated punitive actions. Below is a list of 21

wilful misconduct behaviors for an SMS enterprise to

include in their SMS policy.

Intent: The individual or party must have the intention

to engage in the misconduct.

Knowledge: Awareness of the consequences or harm that

may result from the actions.Deliberate Action: Purposeful and calculated actions rather than accidental or inadvertent behavior.

Recklessness: Acting with a conscious disregard for the

potential negative outcomes.

Malice: Acting with the intent to cause harm or injury

to others.

Defiance of Rules or Policies: Violating established

rules, regulations, or policies knowingly.

Negligence: Failing to exercise reasonable care and

intentionally disregarding safety measures.

Fraudulent Conduct: Engaging in deceptive or fraudulent

activities with the intent to deceive others.

Disregard for Consequences: Ignoring or dismissing the

foreseeable consequences of one's actions.

Conscious Violation of Standards: Violating established

ethical, legal, or professional standards knowingly.

Purposeful Harm: Actions taken with the explicit

purpose of causing harm or damage.

Intentional Misrepresentation: Providing false

information with the intent to deceive.

Wilful Neglect: Failing to perform duties intentionally

or purposefully neglecting responsibilities.

Bad Faith: Acting with dishonest or malicious intent,

often in breach of a contractual obligation.

Moral Turpitude: Engaging in conduct that is considered

morally reprehensible.Conscious Disregard for Others: Ignoring the well-being and rights of others knowingly.

Preconceived Plan: Executing a premeditated plan to

commit misconduct.

Indifference to Legal Consequences: Acting without

regard for the potential legal consequences of one's

actions.

Repetition: Engaging in the misconduct repeatedly or

persistently.

Wilful Violation of Duty: Knowingly violating a duty or

obligation owed to others.

Purposeful Destruction: Intentionally causing damage to

property, reputation, or other interests.

It's important to note that the specific elements of

wilful misconduct may vary based on the legal or

ethical framework in question. Refer to the relevant

laws, regulations, or standards applicable to the

specific context.

SMS enterprises with an SMS policy to consider punitive

actions for wilful misconduct must accept these

conditions and associated punitive actions. Below is a

list of 21 negligence behaviors for an SMS enterprise

to include in their SMS policy.

PENALTIES AND SANCTIONS

Enforcement measures may include the imposition of

penalties, fines, or other sanctions designed by the

SMS enterprise to deter non-compliance and punish those

who violate the established rules.

Injunctions: In certain cases, an SMS enterprise with a

documented SMS enforcement policy, may seek courtorders or injunctions to stop ongoing violations or

prevent future ones.

Educational and

Preventive Measures:

Enforcement is not

always punitive and

may also involve

educational

initiatives and

preventive measures

to inform personnel,

including the

accountable

executive and

managers about the

rules and promote voluntary compliance.

Cooperation and Collaboration: Enforcement efforts

often require collaboration between different agencies,

organizations, or jurisdictions to effectively address

complex issues.

Deterrence: The ultimate goal of enforcement is to

deter future violations by creating a perception that

non-compliance will lead to consequences.

Enforcement mechanisms can vary significantly depending

on the nature of the rules or laws being enforced and

the entities involved. It plays a crucial role in

maintaining order, protecting public interests, and

ensuring a fair and just society.

One crucial question to be answered by SMS enterprises

if they voluntarily accept to travel down the path to

enforce their SMS policy is if they accept to operate

in an environment where processes, procedures and

acceptable work practices are criminalized activities.

An SMS policy cannot be enforced in a dynamic environment, since there is a practical compliance gap at the moment there are airside movements.

Enforcing the SMS policy does not conform to the

regulatory requirement to operate with a process for

setting goals for the improvement of aviation safety

and for measuring the attainment of those goals.

OffRoadPilots