Employers are occasionally confronted with difficult choices, especially when their employees fall victim to threats of violence in the workplace.
These can range from threats made by striking workers against non-striking workers to threats made by members of a community against public officials.
In the recent judgment of the Labour Court in the case of City of Johannesburg vs Swanepoel NO and Others, the court provided a measure of clarity on the extent of an employer’s obligation to provide a safe working environment for employees as provided for by the Occupational Health and Safety Act, No 85 of 1993 (OHSA).
Section 8 of the OHSA provides that all employers have a duty to provide and maintain, as far as reasonably practicable, a safe working environment which is free of risk to the health of their employees.
Additionally, according to Section 9, employers are obliged to conduct their activities in such a manner as to reasonably ensure that these activities do not expose people other than their employees, who are directly affected by the employers’ activities, to any hazards to their health and safety.
The court in the above judgment was faced with determining the justifiability of the dismissal of the third respondent (employee) by the applicant (employer) as a result of the refusal of the employee to be transferred to a different region. The employer proposed the transfer of the employee on the grounds of his and his family’s protection and safety.
The employee had been working on a delayed ongoing project aimed at the improvement and development of Alexandra Township.
However, over the years, since the inception of the project, the community in Alexandra had become disgruntled as a result of a lack of progress.
This dissatisfaction led to a demand for the removal of the employee from the project.
Before this, previous demonstrations had already taken place, an alleged arson attempt directed at the home of an official working with the employee and a sit-in at the office of the mayor. A further contributor to the tension was allegedly attributed to the employee’s investigation into allegations of fraud and corruption in the project, which led to him receiving death threats.
The tension between the community members and the employee, and the consequent concerns for the safety of the employee and his family, led the employer to seek to transfer the employee to a different region based on the same terms and conditions of employment. The aim of the transfer was to prevent any harm to the employee and his family, and to allow emotions to calm in order to properly investigate the community’s grievances in the absence of the employee.
The employee’s refusal to transfer subsequently resulted in his dismissal for gross insubordination for his failure to comply with a lawful and reasonable instruction by his employer.
The Labour Court, in deciding that the dismissal had indeed been fair, held that the actions of the employer in requesting the transfer of the employee had been a reasonable move in the circumstances in compliance with its duties in terms of the OHSA. Thus, the refusal of the employee to abide by the instructed transfer constituted gross insubordination and had prevented the employer from complying with its statutory obligations.
The Labour Court also found that the duty to provide a safe working environment rests upon the employer under common law and statute. It is the working environment that must be safe, and not just the actual place where work is rendered.
The court’s reasoning from this judgment provides that, should the particular circumstances of a case require, an employer, in accordance with OHSA and the common law, will have a duty to take further steps than expected in the ordinary course to prevent harm to its employees. The obligation may be extended to situations where employees may become vulnerable to criminal misconduct should the circumstances call for it.
Another example of where this obligation may be extended is in the workplace where unprotected, or even protected industrial action has turned violent.
The Labour Court is often called upon to interdict and prevent unlawful and violent conduct during the course of strike action, where employees who do not wish to take part in the strike action are intimidated and, in some instances, violently assaulted for their lack of solidarity.
Employers often rely on SAPS to ensure that no harm befalls working employees and contractors, but does this reliance on SAPS absolve those employers from taking further precautionary measures?
The question is whether criminal misconduct is foreseeable, and whether the employer is in a position to take precautionary measures to reasonably safeguard its employees who don’t wish to take part in industrial action.
Needless to say, every situation would be determined on its own merits and circumstances.
Employers should be aware that the specific health and safety standards prescribed by OHSA constitute a minimum threshold and situations may be encountered when additional action should be taken by employers to ensure that a safe working environment is maintained.
* Michael Yeates and Emilia Pabian are associates in Cliffe Dekker Hofmeyr’s employment law practice.
** The views expressed here do not necessarily reflect those of Independent Media.
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