The Man In The Street And The Law

An excavation collapsed without warning and a person died.  This was a very traumatic experience for everyone involved.

The sequence of events on that fateful day goes something like this:  Turmoil on site as the news travels that “someone was in there”.  Emergency personnel arrive. The news is tragic. HOA committee members arrive, unsure of what to do next.  Then the Department of Labour arrives to conduct its own investigation. They ask to see all documentation, checking the dates and signatures on everything; they demand the site Health and Safety file (SHE file), checking every risk assessment, induction register, toolbox talk, etc.  They must try to establish a cause for the accident. They conduct interviews with people that are probably still shocked and traumatised.

When the dust begins to settle, the reality sinks in. Someone died on site today, someone’s son, your colleague, someone’s father, your friend … and the question still remains, did we do everything possible to prevent this tragedy?  Could I have done more? Was something, anything, overlooked?

This is the reality:  If something like this was to happen in your estate, the Department of Labour will come and conduct an investigation.  They will go through everything to try to ascertain a cause, due to what you have done, or what you have failed to do. If your SHE file is either non-existent or not correct and up to date, you can be found on the wrong side of the law, which can involve a long and expensive court case, followed harsh penalties.  Sometimes we are so busy with doing what we do best at work that we fail to recognise the risk we are at, every time a contractor enters our estate.

The question we need to ask is why will the Department of Labour go through everything, including documentation, to try to find out who is liable?  Is that really true? Is it really what they are trying to do, to apportion blame, or is there perhaps more that employers and management need to understand, and ensure their employees understand?

When we look at the Occupational Health and Safety Act 85 of 1993 there are two concepts that need to be understood in order to fully grasp the impact of a serious incident, accident or death in your workplace.  Firstly it needs to be understood that the OHS Act is the minimum standard with which an employer and employee needs to comply with. This means that whatever is stated as required by this OHS Act is the least that needs to be addressed.  More safety measures can be put in place if required, but not less.
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The duties placed on employers and employees by the OHS Act need to be understood.  According to Construction Regulations 5 (1)(q) a client must - stop any contractor from executing a construction activity which poses a threat to the health and safety of persons which is not in accordance with the client's health and safety specifications and the principal contractor's health and safety plan for the site;
CR 5(1)(s) - ensure that the health and safety file contemplated in regulation 7(1)(b) is kept and maintained by the principal contractor; and Section 8 of the OHS Act - the employer must, as far as is reasonably practicable, provide and maintain a safe and risk free working environment.  What is safe?  Safe means free from hazard.  What is a hazard? A hazard is the source of or exposure to danger.  What is danger? Danger is anything that can cause harm to people, property, processes, products and environment.  The minimum standard is then, as far as is reasonably practicable, a working environment that is free from any exposure to anything that can cause harm to people, property, products, processes and environment.  This is then the minimum required by the OHS Act that must be complied with.

The second concept that needs to be understood about the OHS Act is that the Act is self-regulatory. This means that neither the government nor the Department of Labour will implement day to day compliance with this Act because the responsibility of implementing and enforcing this Act is placed on the employer.  This Act will inform the employer what is required by law, but not how to implement it in order to achieve and maintain compliance. The onus of how to implement and enforce the Act in your work situation is the responsibility of the employer and includes the employee.

When an incident or accident happens in your workplace the Department of Labour will come not only to determine whether you have complied with the minimum standards of the OHS Act but also to verify whether you are actually enforcing this Act. Failure to do so is what is called vicarious liability, meaning that the employer has not used his power and authority to enforce safety measures in the work situation.  According to vicarious liability if an employee acts contrary to, or omits to act in accordance with, the safety measures in place, it is deemed that the employer did not exert his authority, bestowed by the Act, to ensure his employees act responsibly in maintaining a safe working environment free from hazards. This is why the Department of Labour will always look first to the employer.

You as the employer have been given the authority to prescribe the deeds and actions of your employees and if you fail to exercise this authority you may be held responsible.  Mitigation, however, is offered by the OHS Act in Section 37, in that if you do exercise your authority and an employee still commits an act, or omits to act, which leads to a violation of this OHS Act, the employee can be held liable as if he is the employer.

SHe Files is an online utility that will turn this (very abbreviated)  documentary nightmare into a streamlined solution at little or no cost to the HOA.