Health and Safety
“Accident: an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury.”
An excavation collapsed without warning and a person died; a young man received an electrical shock and died doing maintenance work; a crane accident took the life of a devoted husband and father; and the list goes on. These were very traumatic experiences for everyone involved.
The sequence of events that day, and typically when an accident occurs, goes something like this: An accident on site turns to turmoil on site as the news travels that “someone was in there”. Emergency personnel arrive. The news is tragic. Site Management and Safety advisors begin briefing site personnel and conducting an accident investigation. 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 go through the site files, 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 business, the Department of Labour must come and conduct an investigation. They will go through everything to try to ascertain a cause, by what you have done, or by what you have failed to do. If your documentation is 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. Sometimes we are so busy with doing what we do best at work that we fail to realize how serious this can be.
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 by the nature of your work or your work environment, but not less.
The expectation placed on employers and employees by the OHS Act need to be understood. According to Section 8 of the OHS Act the employer must provide and maintain a safe and healthy 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 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 even 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. This is what is called vicarious liability, meaning that the employer has the power and authority to enforce safety measures in their 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.