Any breach of the Occupational Health and Safety Act will render the employer liable for damages by way of civil action.
The employer must apply safeguards prescribed by legislation and must foresee the result of fatal accidents and or damage. All employees are requested to report their concerns about the maintenance of safety standards in the workplace.
If any action is taken against them, that would be unfair. There is a duty on the employer to act proactively to avoid any harm or injury to employees and others. Each case will be determined on its own facts and circumstances.
Our courts say that the employer and, to a less extent, the employee as the duty holders, complete a risk assessment and consider what can or should be done under the circumstances, considering their knowledge of the situation to ensure the health and safety of employees, co-workers and others who might be put in harm’s way because of their activities.
Likewise, if there is any suspicion of another employee, who is under the influence of alcohol or drugs, this must be reported immediately.
Every self-employed person should also conduct his or her undertaking in such a manner so as to ensure, as far as is reasonably practicable, that they and others who may be directly affected by their activities are not exposed to hazards to their health or safety.
In a specific case, it was held that a union’s rejection of a breathalyser testing was justified and would not necessarily involve the employer in not complying with the Act. However, if there is suspicion of the employee being under the influence, then the test must take place.
There are general duties of manufacturers and others regarding articles and substances for use at work.
If something is erected or installed and makes it unsafe or creates a risk to health when properly used, this would be a breach of the legislation.
Every manufacturer must ensure that the substance is safe and without risks to health when properly used.
There is a duty for employer and employees to inform a health and safety representative as soon as reasonably practicable of any occurrence or incident in the workplace. All employees have to take reasonable care for the health and safety of themselves and of others who may be affected by their acts or omissions. If any situation which is unsafe or unhealthy comes to an employee’s or an employer’s attention, they must report it as soon as possible and ensure it is properly dealt with. If anyone is involved in an incident which may affect their health or has caused an injury to themselves, this incident must be reported to the health and safety representative at least by the end of that particular shift.
Employees who breach the rules or deliberately violate a safety rule will face disciplinary action. A failure to obey any reasonable and lawful job instruction or safety rule or regulation is both serious and deliberate. An employee may be said to have repudiated his employment contract and it is competent for his employer to dismiss him. All failures to obey safety rules will be viewed in a serious light.
In earlier court cases employees had been dismissed for failing to wear hearing protection and or head gear.
The courts often note that the failure to properly protect yourself at the workplace could be so serious that it damages or destroys the relationship between the employer and the employee.
Any person who tampers with or misuses any safety equipment installed or provided to any person by an employer or user will be subject to disciplinary action.
Likewise the failure to use any safety equipment at the workplace or in the course of employment or in connection with the use of plant or machinery would also lead to possible dismissal.
This area of health and safety is subject to numerous rules and regulations and it is important for every employer to take advice so as to ensure the workplace is safe for both the employees and any member of the public. It is also important for every employer to ensure that they have their own rules and regulations governing the safety of every person at the workplace at all times.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media