WHO FACES THE MUSIC? (TAKING RESPONSIBILITY FOR WORKPLACE HEALTH AND SAFETY)

By Ebrahiem Abrahams Tuesday, March 13, 2012
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The responsibility to ensure compliance with an employer's health and safety obligations

Death or injury by negligence or accident, is a reality in our daily working environments. The financial implications and penalties, as well as, the social impact of traumatic events occurring in the workplace due to accidents or neglect of the basic duties prescribed by the Occupational Health and Safety Act, No. 85 of I993 coviAsiv) can be catastrophic. The employer is duty bound by law to provide a safe working environment for its employees. These rules and regulations are not frivolous. They are of the utmost importance and are ignored at everyone’s peril!

Who bears the responsibility to ensure compliance with an employer’s health and safety duties as regulated by the Occupational Health and Safety Act, 85 of 1993?

This article explores this often overlooked, but crucially important question.

THE APPLICABLE SECTIONS

In terms of OHASA the following sections deal with an employer’s responsibility to ensure compliance.  They are:

  • Section 8 -  (General duties of employers to their employees)
  • Section 9 -  (General duties of employers and self-employed persons to persons other than their employees)
  • Section 13 -  (General duties of employees at work)
  • Section 16 -  (Chief Executive Officer charged with certain duties)

THE EMPLOYER

It is clear from the outset that the employer is the party tasked with most of the responsibility in ensuring compliance with OHASA as stipulated by section 8(1) of the Act:

  • “Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.”

And again by section 9(1) of the Act:

  • “Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.”

In terms of section 13 of the Act the employer must ensure that every employee is informed and clearly understands the health and safety hazards of any work being done, anything being produced, stored, handled or transported, and any equipment or machinery being used.  The employer must then provide information about precautionary measures against these hazards.

However, it is not expected of the employer to take sole responsibility for health and safety.  The Act is based on the principle that dangers in the workplace must be addressed by communication and co-operation between the employees and the employer.  The employees and the employer must share the responsibility for health and safety in the workplace.  Both parties must pro-actively identify dangers and develop control measures to make the workplace safe.

“Reasonably practicable”:  What does it mean?

The Act uses the phrase “reasonably practicable” when setting out the steps that employers are required to take to ensure workplace health and safety.  This phrase is defined in the Act as follows:

“Reasonably practicable” means practicable having regard to –

  • The severity and scope of the hazard concerned;
  • The state of knowledge reasonably available concerning the hazard or risk of any means of removing or mitigating that hazard or risk;
  • The availability and suitability of means to remove or mitigate that hazard or risk; and
  • The cost of removing or mitigating that hazard or risk, in relation to the benefits derived therefrom.

The reasonableness of the employer’s precautions is therefore measured with reference to these four points*. It is clear from this that “reasonably practicable” precautions in an electrical plant would have to be different than they would be, for example, in a workplace where only hand-tools were used.

THE EMPLOYEE

It is often thought that the employee has no obligations in terms of OHASA, but this view is fundamentally flawed.  There is a reciprocal obligation as an employee to be responsible for your own health, safety and wellbeing as well as that of fellow employees.

Section 14 of the Act states that every employee shall:

  • Take reasonable care for the health and safety of himself and of other people who may be affected by his acts or omissions.
  • Carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his employer.
  • If any situation which is unsafe or unhealthy comes to his attention, he must as soon as practicable report it to his employer or to the health and safety representative.
  • Employees can be disciplined for failing to adhere to health and safety requirements.

THE CEO

Most CEO’s and managers have at some time opened their Occupational Health and Safety Act and read section 16 and then perhaps not given it another thought.  In order to prevent unfortunate incidents which may lead to criminal or civil liability, let’s determine what the Act requires:

  • Every Chief Executive Officer shall, as far as is reasonably practicable, ensure that the duties of his employer as contemplated in this Act are properly discharged.
  • Without derogating from his responsibility or liability, a Chief Executive Officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the Chief Executive Officer.

The responsibility and liability remains with the CEO who must ensure that the duties imposed by this Act on the employer, are properly discharged.  The legislature clearly wanted to ensure that these health and safety duties are properly delegated by stipulating that some natural person be held accountable.  That person is the CEO.

The CEO has to go further than merely appointing a Health and Safety Officer.  He/she must ensure that the company’s own directives as well as the directives of OHASA are fully complied with.  These can be achieved by:

  • Having stringent checks and balances in place as a monitoring guide;
  • Receiving comprehensive monthly reports from the health and safety officer;
  • Establishing effective health and safety committees;
  • Placing health and safety on the agenda item at every board meeting.

WHO IS A CEO?

Section 1 of OHASA defines the CEO as:

  • “In relation to a body corporate or an enterprise conducted by the state, means the person who is responsible for the overall management and control of the business of such body corporate or enterprise.”

In the case of a company with a board of directors, the board has to decide amongst themselves which of the directors will be considered as the person with the most authority or the person with the final say.  The last mentioned person will be “responsible for the overall management and control of the business of such body corporate or enterprise” and deemed to be the CEO.

In the case of a company without a board of directors or a close corporation, the owner of such company or corporation will be deemed to be the CEO.  In the case of the State, the head of a department (Director General) is regarded as the CEO.  There can only be one CEO.  The Act appoints this person as the “accountable person” for health and safety.

The legislature did not intend OHASA to be a tyrannical law, imposing unnecessary burdens on employer.  It saw it as a mechanism to ensure that all parties involved, from the CEO to the employee on the factory floor, understand and implement its directives in order to foster a safe working environment where everybody can prosper.   A safe workplace provides the consistency and reliability needed to build and grow a business.

Safe environments improve employee morale, which leads to increased productivity and better service.  Businesses operate more efficiently when they implement effective safety and health management systems.

Employee involvement is just as important as management involvement.  Health and safety involves all levels of the workforce, from the top to the bottom.  Employee involvement should be encouraged by management.  It is important to establish participation, communication and trust between the various role players in order to create a positive safety culture.

So in answering our question, it is clear that there is no one single party responsible for ensuring compliance with an employer’s health and safety duties.

*[C Thompson and P Benjamin South African Labour Law Vol 2, page G1-18 Juta and Co. Wetton.]

This article was written by Ebrahiem Abrahams and Motheo Mtimkulu and first appeared in Health & Safety at work in SA, Issue 1/2012.