Health and Safety

Tinus Boshoff


According to the Occupational Health and Safety Act (Act 85 of 1993), all employers must, where reasonably practicable, provide and maintain a safe, healthy working environment that is without risk to employees. (Based on Legislation in section 8, of the Occupational Health and Safety Act).

 

The primary responsibility for ensuring a safe and healthy work environment is placed on the Chief Executive Officer or person deemed to be the Chief Executive Officer of the organisation. The OHS Act defines the Chief Executive Officer as follows:

 

"In relation to a body corporate or an enterprise conducted by the state, means the person who is responsible for the overall management and control of the business of such body corporate or enterprise." (Based on Legislation in section 1, of the Occupational Health and Safety Act) Under Section 16 of the OHS Act, the Chief Executive Officer is charged with certain duties and responsibilities.

 

Section 16: Chief executive officer charged with certain duties
(1) Every chief executive officer shall as far as is reasonably practicable, ensure that the duties of his employer, as contemplated in this Act, are properly discharged.

(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

(3) The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or liability under this Act.

(4) For the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department.

 

Based on Legislation in section 16, of the Occupational Health and Safety Act

 

Proposed legal hierarchy according to section 16 of the Occupational Health and Safety Act:

 

Section 16(1) of the Occupational Health and Safety Act, appoints the CEO of the business or body corporate as the accountable person, responsible to provide and maintain a safe and healthy work environment that is without risk to employees and others.

 

Section 37 of the same Act stipulates that whenever an employee does or omits to do any act, which would be an offence for the employer of such employee to do or omit to do, the CEO would be seen the accountable person.

 

Without derogating from this responsibility or liability, the CEO may however delegate safety and health related responsibilities to the management of the business or organisation. In terms of this appointment, the Section 16(2) appointee(s) will then be responsible for the management of occupational health and safety matters at the designated area of appointment.

 

After appointment they will be legally bound to help and assist the CEO (Section 16(1)) with safety management over these designated areas. Remember that a person may delegate responsibility but not accountability.

 

The intention of the legislator is to enforce an official legal structure within the organisation. These prescribed structures largely assist with the proper delegation of health and safety responsibilities within the business environment. (Based on Legislation in section 16 and section 37, of the Occupational Health and Safety Act)

 

To facilitate effective safety management within the business or organisation, the roles and responsibilities of the above mentioned persons should be clearly defined, documented and communicated. In order to meet this responsibility, Section 16(1) and (2) appointees should familiarize themselves with all statutory requirements stipulated by the Occupational Health and Safety Act and regulations.

 

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Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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12 September 2019

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Tsogo Sun: Century City: Cape Town

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Tsogo Sun: Century City: Cape Town

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Emperors Palace: Convention Centre

04 October 2019

Southern Sun: Maharani: Durban

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04 September 2019

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The OHS Act and the Responsibilities of Management

13 September 2019

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19 September 2019

Emperors Palace: Convention Centre

28 November 2019

Protea Hotel By Marriott Tyger Valley: Cape Town

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20 September 2019

Emperors Palace: Convention Centre

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Emperors Palace: Convention Centre

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