By Sue-Ann Wayow
IT’S not for the Commission of Enquiry (CoE) into the Paria-LMCS tragedy to either pronounce judgement on any entity or recommend prosecution.
That is a job for the relevant authorities such as the Director of Public Prosecutions (DPP) and the Occupational Safety and Health Agency (OSHA).
The CoE’s main task is to provide the agencies with the facts based on all the evidence provided and then that agency will make their decisions based on those facts.
CoE’s chairman Jerome Lynch, KC, on Friday said, “It is no part of our remit to recommend prosecution as such. We can do, is to identify the facts and recommend for example either the DPP or OSHA consider whether or not an offence has been disclosed.”
He added, “It is not part of our responsibility to say, LMCS is guilty of some crime or Paria are guilty of some breach of the Act, it doesn’t lie in our mouths to say that. It is our responsibility to simply report the facts as we see them and then to invite any of those agencies to consider whether or not they wish to prosecute.”
Counsel to the Commission Ramesh Lawrence Maharaj, SC, referred to the OSH Act while making his closing statements to the Commission.
The Act states under procedure for prosecution Section 91.2 , “Where, with respect to or in consequence of any accident in an industrial establishment, a report is made by a commission of enquiry or a coroner’s inquest is held, and it appears from the report or from the proceedings at the inquest that this Act was not complied with at or before the time of the accident, summary proceedings against the person liable to be proceeded against in respect of such non-compliance may be commenced at any time within six months after the making of the report or the conclusion of the inquest.”
Maharaj said the OSH Act imposes on employers that safety obligations were not just to those working at the establishments but also to visitors and suppliers who might be affected by activities carried out by the establishment.
Time is of the essence if prosecution is to take place
Lynch said, “My understanding of the Act allows this Commission if we chose to do so to recommend prosecution and the timeline starts from then rather than the original act.”
The date the incident in which four men were sucked into a pipeline and subsequently died is February 25, 2022 and six months from that date has already expired.
“But because a Commission of Enquiry has been established, we have the power… for the six months to run from the date of that recommendation.”
“Correct,” Maharaj agreed.
Lynch said, “Crucial in that of course is that once we hand in our report assuming it is at the end of this April, the time runs from then and the government need to be aware that timely disclosure of the report so that OSHA could act on it if they choose to do so,”
Any delay in disclosing the report generally and in particular to OSHA may result in the time barred he said.
Maharaj also agreed to that.
He also referred to Section 86 of the Act which states, “ Subject to subsection (2), where a person dies, is critically injured or develops an occupational disease in consequence of an employer, occupier or owner having contravened this Act, the employer, occupier or owner shall, without prejudice to any other liability or right of action arising out of the death or critical injury or disease, be liable to a fine of one hundred thousand dollars, or of an amount equivalent to three years pay of that person, whichever is greater, and the whole or part of the fine may be applied for the benefit of the victim or of his estate, or otherwise as the Court may determine.”
Lynch noted that $100,000 liability was “not very much.”
It is one of the recommendations being put forward by Maharaj that that figure be revisited.
Maharaj to give confidential opinion on issue of criminal prosecution
Maharaj also addressed the issue of criminal prosecution, a recommendation made by attorney Prakash Ramadhar and dismissed by Paria’s attorney Gilbert Peterson, SC.
He said his legal team has not yet completed research on that issue which would be completed within the next seven days.
“The law in this area has been developing,” Maharaj said.
The senior counsel also emphasised that any opinion on that matter given to the Commission would be private and confidential and would not be made public.
