By Marco Schepers Associate BCom LLB

Health and Safety in the Workplace: A South African Perspective Is the Employer s Obligation to Provide a Safe Working Environment a Satisfactory Position? By Marco Schepers Associate BCom LLB 1. Introduction Every year dramatic scenes of workers suffering the consequences of occupational hazards are streamed to media across the world. The trapped Chilean mineworkers and New Zealand construction workers holding on to scaffolding for dear life in 2010 are significant and costly reminders about the importance of workplace safety which is celebrated annually on 28 April. World Day for Safety and Health at Work was declared by the International Labour Organisation (ILO) to promote the prevention of occupational accidents and diseases globally and is an awareness-raising campaign intended to focus attention on emerging trends in the field of occupational health and safety and on the magnitude of work-related injuries, diseases and fatalities not only in South Africa but worldwide. World Day for Safety and Health at Work can be utilised as a stark reminder to employers of their obligations in applying health and safety legislation, but is the employer s obligation to provide a safe working environment a satisfactory position within South Africa? This question comes in light of much criticism being directed at South Africa s well written and comprehensive health and safety legislation being regarded as toothless and ineffective. The aim of this paper is to firstly provide a critical analyses and evaluation on the health and safety duties and obligations imposed on both employers and employees within the South African health and safety legal framework and secondly, to determine whether this current position is satisfactory. 2. South Africa s Health and Safety Legal Framework The health and safety of employees at the workplace is a fundamental issue which cannot simply be left to self-regulation by the parties involved and consequently it is fundamental for both employers and employees to know and understand their obligations and rights when it comes to occupational health and safety. Therefore, as a point of departure it is essential to determine and establish the scope of application of the few overreaching legislations in South Africa regulating employees safety and compensation in the workplace. In South Africa, occupational health and safety is regulated by common law and statute. At common law, employers have an obligation to take reasonable care of their employees in all the circumstances of employment. Within the legislative framework, two major Acts regulate occupational health and safety viz. the Occupational Health and Safety Act, No. 85 of 1993 ( OHSA ) and the Mine Health and Safety Act, No. 29 of 1996 ( MHSA ). The MHSA applies to mines and works as defined as related aspects while the OHSA applies to other industries but does not apply to employers and workplaces to which the MHSA and certain matters covered by the Merchant Shipping Act, No. 57 of 1951 apply. In essence, these Acts restate the common law position in obliging employers to take all reasonable and practicable measures to ensure a safe and healthy work environment. While the OHSA and MHSA strive to prevent the contraction of diseases and injuries of employees and therefore serves as a preventative piece of legislation, further legislation has also been enacted to deal with the aftermath of injuries and diseases, viz. the payment of compensation to the injured employee. The Compensation for Occupational Injuries and Diseases Act, No 130 of 1993 ( COIDA ) and Occupational Diseases in Mines and Works Act, No 78 of 1973 ( ODMWA ) provides for Page 1

mechanisms for employees to claim compensation when injured or becoming ill as a result of his or her work. 3. The Employers Health and Safety Obligations Common Law Common law refers to those rules which form part of our law and which are derived from custom and judicial precedent rather than legislation. In South Africa our common law derives from the Roman Dutch Law. The South African courts have in SAR & H v Cruywagen 1938 CPD 219 at 229, stated that at common law, an employer has a duty to provide a safe working environment, safe equipment and tools and a safe method of work. This obligation does not however guarantee that the employer will provide working conditions that will always be safe. Because of this, the employee would at common law have to institute legal proceedings by means of a delict which would require him or her to prove negligence on the part of the employer rather than claiming possible damages from the employers breach of the employment contract which would not be ordinarily possible in the event of an employee s injury at work. In Van Deventer v Workman s Compensation Commissioner 1962 (4) SA 28 (T), the court held that an employer owes a common-law duty to a workman to take reasonable care for his safety and referred to the following common law duties placed on an employer: if the work is of a dangerous nature the employer must take all reasonable precautions to ensure the safety of the workers; the employer cannot be held liable for any latent defects in the plant which could not be noticed by reasonable examination; and the employer must ensure that employees do not suffer as a result of the employer s negligence. It is therefore clear that the employer s obligation is always qualified by the word reasonable. This means that the courts will measure an employer s actions against a reasonable person test in which the courts will ask the following questions: Would a reasonable person in the position of the employer have foreseen the possibility that a person may be injured? Would the reasonable person have taken steps against the accident which gave raise to the injury? Did the employer in question fail to take the steps a reasonable person would have? The employer s obligation to provide a safe working environment is however not absolute, meaning that it is not expected of an employer to ensure safety against every possible remote occurrence, but restricted by the concept of reasonableness. Section 35 of COIDA has however altered the common law position, which now prevents an employee who has been injured on duty to claim damages from the employer. Instead, the employee must now claim from the Compensation Commissioner. The COIDA makes it easier for employees as they do not have to prove, inter alia, that the employer acted negligently in order to claim compensation. The employee will, however, only be entitled to a fixed amount of compensation which could be considerably less than that which the employee could have claimed if he or she had been successful with a delictual claim. OHSA & MHSA Apart from every employer s common law obligation, section 8(1) of OHSA places an important primary obligation on every employer to provide and maintain as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees. The interpretation of the above section is qualified by the words reasonably practicable. This would mean that the obligation to provide safe premises, safe machinery, tools and safe systems of work is not an absolute one, but again restricted by the concept of reasonableness. Reasonableness is ultimately the measure which determines whether conduct complies with the Act and will depend on the circumstances of Page 2

each case. Section 8(2) of the OHSA places further statutory obligations on employer s to ensure compliance with the obligation outlined in section 8(1) and which requires an employer to: (e) (f) (g) provide and maintain a system of work, plant and machinery that, as far as reasonably practicable, are safe and without risk to health; take such steps that are reasonable practicable to eliminate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective material; make arrangements, as far as reasonably practicable, to ensure the safety and absence of health risks in connection with the production, processing, use, handling, storage or transportation of articles or substance; establish, as far as reasonably practicable, what hazards are attached to any work performed, or to any article or substance produced, processed, used, handled, stored or transported and to establish what precautionary measures should be taken in respect of such work, article or substance in order to protect the health and safety of persons; provide information, instructions, training and supervision, as far as it may be necessary to ensure the health and safety at work of the employees; as far as is reasonably practicable, not to permit any employee to do any work or to produce, process, use, handle, store or transport any article or substance unless the precautionary measures prescribed by the Act have been taken; and take all necessary measures to ensure that the requirements of the OHSA, that would include supervision, training, instructions and information are complied with by every employee or other person on the premises of the employer where plant or machinery is used. It is important to note that the obligation of the employer to provide safe working conditions is not limited to the employer s own employees. Section 9(1) of the OHSA provides that every employer must as far as reasonably practicable conduct his or her activities in such a manner that persons other than those in the employer s employment who may be directly affected by his or her activities are not exposed to hazards of their health and safety. Section 5(1) of the MHSA provides that [t]o the extent that it is reasonably practicable, every employer must provide and maintain a working environment that is safe and without risk to the health of employees. The reasonableness sentiment echoed in the OHSA is similar in the MHSA. Section 102 and 1 of the MHSA and OHSA respectively define the words reasonably practicable as meaning practicable having regard to the severity and scope of the hazard or risk concerned; the state of knowledge reasonably available concerning that hazard or risk and 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 costs and the benefits of removing or mitigating that hazard or risk. Section 2(1) of the MHSA further provides that every employer of a mine being worked must ensure, as far as reasonably practicable, that the mine is designed, constructed, equipped and operated in such a way that employees can perform their work without endangering the health and safety of employees or of any other person. A number of obligations have been imposed on employers of mines in respect of the maintenance of health and safety at every mine. The most important obligations are to: (e) (f) (g) (h) (i) maintain a healthy and safe environment; ensure an adequate supply of health and safety equipment; appoint staff with due regard to health and safety; establish a health and safety policy; provide health and safety training; assess and respond to risk; conduct occupational hygiene measures; establish a system of medical surveillance of employees exposed to health hazards; and keep a service record or hazardous work. Section 8(1) read with section 1 of the OHSA and section 2, 5 and 102 of the MHSA was an attempt by the legislature to give some content to the requirement of reasonableness. As discussed above, this would mean that the obligation to provide safe premises, safe machinery, tools and safe systems of work is not an absolute one, but restricted by the concept of reasonableness. This means that both Page 3

the legislature and the common law compels the employer to adopt an all-inclusive approach to health and safety management. The employer must use a number of measures forming part of a health and safety management system to ensure a reasonably safe working place. This entails the employer relying on: risk management; formal and informal training of employees; an organisational structure of experienced and competent employees; safe equipment; safe systems of work; safety procedures; supervision; discipline; and maintenance procedures. What is often unknown to laypersons is the fact that the OHSA and MHSA are pro-active pieces of legislation which also impose health and safety obligations on employees. The safety obligations of employees are relevant and must also be taken into account when considering the question whether the workplace is or was safe, as far as reasonably practicable. Section 14 of the OHSA provides as follows: Every employee shall at work take reasonable care of their own safety and health and of other persons who may be affected by the employee s acts or omissions; co-operate with the employer or any other person to make it possible to comply with any requirement which is imposed on that person by the OHSA; carry out any lawful orders given to the employee and obey the health and safety rules laid down by the employer in the interest of health and safety; report to the employer or the health and safety representative any unsafe or unhealthy situation which may come to the attention of the employee as soon as is practicable possible; and (e) report as soon as practicable to the employer or the safety representative any incident in which the employee may have been involved which may affect the employee s health or has caused an injury. Section 22 of the MHSA provides as follows: Every employee at a mine, while at that mine, must take reasonable care to protect their own health and safety; take reasonable care to protect the health and safety of other persons who may be affected by any act or omission of that employee; use and take proper care of protective clothing, and other health and safety facilities and equipment provided for the protection, health or safety of that employee and other employees; report promptly to their immediate supervisor any situation which the employee believes presents a risk to the health or safety of that employee or other person, and with which the employee cannot properly deal; (e) co-operate with any person to permit compliance with the duties and responsibilities placed on that person in terms of this Act; and (f) comply with prescribed health and safety measures. 4. Is the Employer s Obligation to Provide a Safe Working Environment a Satisfactory Position within South Africa? The South African common law and legislation provides for various rights and duties for both employers and employees, but the ultimate question that often arises is whether these obligations provide a satisfactory position within the South African health and safety framework? Despite the fact that the vague common law duty is ill-suited to address fast changing and specific health and safety concerns in the workplace properly, the legislature realised these deficiencies and in Page 4

order to ensure that employees are protected against workplace injuries and diseases applied a double-barrel approach to prevent workplace injuries. This is evident from the OHSA and MHSA and then the compensatory legislation of COIDA and ODMWA being enacted. The somewhat deficient common law is however further exacerbated by the fact that the civil justice system is expressly excluded as a mechanism to hold employers liable by virtue of the provisions of section 35 of COIDA, which preclude any employee or the dependent of the employee from instituting legal proceedings against the employer to recover damages in the civil courts. One consequence flowing from this lack of civil accountability on the part of the employer is that our courts have not had an opportunity to develop a body of case law to determine the content and meaning of the employer s duty of care and therefore no developed law on what those duties are exist. This is why employers are seldom if ever prosecuted for contravening their general duty of care as set out in the principle Acts, therefore rendering the provisions somewhat toothless. Therefore there is a need to introduce law which will address issues of occupational health and safety in a more comprehensive manner. Health and safety legislation is intended to give content to the employer s duty of care and then to enhance accountability by providing for a range of additional criminal and administrative sanctions and secondly to provide for facilitation of civil liability through the principle of strict liability for breach of a statutory duty. Currently, this is not the case in South Africa. The general duty is prevalent but the enforcement thereof is not reaching its potential, leaving employees without the sufficient opportunity to enforce legal proceedings and are to an extent restricted by the provisions of COIDA. From the above, it is clear that the South African law places an obligation upon every employer to ensure a healthy and safe working environment for its workers and this obligation finds its origins in section 24 of the Constitution of South Africa, No 108 of 1996, which states that every person has the right to an environment which is not harmful to their health and well-being. However this right enshrined in the Constitution is somewhat shadowed by COIDA and ODMWA. In conclusion the position within the health and safety legislature and the enforcement thereof are certainly not satisfactory and the need for a paradigm shift is calling. Reference 1. Basson, A (2009) Essential Labour Law 5 th Edition, South Africa. 2. Compensation for Occupational Injuries and Diseases Act, No 130 of 1993, South Africa. 3. Grogan J Workplace Law, 10 th Edition (2009) Juta & Co. Ltd, South Africa. 4. Mine Health and Safety Act, No 29 of 1996, South Africa. 5. Occupational Health and Safety Act, No 85 of 1993, South Africa. 6. SAR & H v Cruywagen 1938 CPD 219 at 229. 7. South African Constitution, No 108 of 1996. 8. Tshoose I, Employers Duty to Provide a Safe Working Environment: A South African Perspective, Journal of International Commercial Law and Technology Vol. 6, Issue 3 (2011). 9. Van Deventer v Workmen s Compensation Commissioner 1962 (4) SA 28. Page 5