Prac­ti­ca­bil­ity a guide to health and safety

‘Rea­son­able­ness’ de­ter­mines mea­sure of com­pli­ance with act

Business Day - Business Law and Tax Review - - FRONT PAGE - PI­ETER COLYN & CE­LESTE COLES

MIN­ING em­ploy­ers are re­spon­si­ble for en­sur­ing that work­ing places are healthy and safe, as far as is rea­son­ably prac­ti­ca­ble. The ques­tion is what cri­te­rion gov­erns the ques­tion whether a work­ing place is con­sid­ered healthy and safe or not.

The mine and oc­cu­pa­tional health and safety depart­ment of ENSafrica is of­ten con­fronted with a mis­con­ceived as­sump­tion that merely be­cause an ac­ci­dent oc­curred in a work­ing place and re­sulted in an in­jury to, or death of a per­son, then such a work­ing place is au­to­mat­i­cally clas­si­fied as un­safe and/or haz­ardous to health.

An em­ployer is then placed in a sit­u­a­tion where it is as­sumed that it failed to com­ply with its obligations, and it bears the re­spon­si­bil­ity to in­di­cate that the work­place in ques­tion is safe. Such an as­sump­tion is in­cor­rect in the large ma­jor­ity of cases.

To draw a con­clu­sion as to whether a work­ing place is healthy and safe (or not), ob­jec­tive cri­te­ria must be ap­plied. In South African law, health and safety on mines is gov­erned by the Mine Health and Safety Act, 1996 and the reg­u­la­tions, as well as the com­mon law (Ro­man Dutch law, as amended by statu­tory laws and in­ter­preted by our courts). An em­ployer’s obligations are not only de­rived from com­mon law and the act, but may also arise from con­tracts which may ex­ist (for ex­am­ple, be­tween an in­de­pen­dent con­trac­tor com­pany and the em­ployer) and guide­lines and in­struc­tions is­sued by the Mine Health and Safety In­spec­torate (the rel­e­vant reg­u­la­tor) of the Depart­ment of Min­eral Re­sources.

The act and reg­u­la­tions con­tain var­i­ous pro­vi­sions deal­ing with an em­ployer’s obli­ga­tion to pro­vide a work­ing place, which is healthy and safe, as far as rea­son­ably prac­ti­ca­ble (see for ex­am­ple sec­tions 2, 5, 7, 10 of the act). The stan­dard of care, which the act re­quires of the em­ployer is, in most in­stances, one of rea­son­able prac­ti­ca­bil­ity. This phrase is de­fined in the act. The mea­sures taken by an em­ployer at a work­ing place must take into ac­count the par­tic­u­lar haz­ard or risk con­cerned. The stan­dard of care is a dy­namic one and must take cog­ni­sance of de­vel­op­ments in the rel­e­vant in­dus­try. The test of prac­ti­ca­bil­ity is an ob­jec­tive one which must be eval­u­ated in the con­text of the par­tic­u­lar work.

In or­der for an em­ployer to demon­strate a sys­tem which is healthy and safe, which en­sures a healthy and safe work­ing en­vi­ron­ment, a holis­tic ap­proach must be adopted. In other words, an em­ployer may elect to use a num­ber of mea­sures to en­sure healthy and safe work­ing places.

There are var­i­ous ex­am­ples of mea­sures which may be in­cluded in a health and safety man­age­ment sys­tem. An em­ployer may rely on, among oth­ers, for­mal and in­for­mal train­ing of em­ploy­ees; an or­gan­i­sa­tional struc­ture of ex­pe­ri­enced and com­pe­tent per­sons; equip­ment which is safe and does not en­dan­ger the health of per­sons; sys­tems of work which are safe and which do not ex­pose per­sons to un­healthy con­di­tions; health and safety stan­dards and pro­ce­dures; su­per­vi­sion and proper dis­ci­pline; main­te­nance pro­ce­dures; and risk man­age­ment.

In other words, one must ob­jec­tively con­sider whether a work­ing place is safe, as far as rea­son­ably prac­ti­ca­ble, and not haz­ardous to health, by ref- erenc­ing and analysing the above­men­tioned mea­sures. If one health or safety mea­sure on which an em­ployer re­lied was not ef­fec­tive, it does not mean that the work­ing place was un­safe or haz­ardous to health.

The statu­tory mea­sures of health and safety (as set out in the act and reg­u­la­tions) must be in­ter­preted in light of the com­mon law duty of care. In gen­eral, the duty of care means that the em­ployer, act­ing per­son­ally or through its agents, must take rea­son­able care for the safety of its em­ploy­ees. Our courts have used the stan­dard of the rea­son­able per­son as the cri­te­rion to de­ter­mine the rea­son­able­ness of con­duct and have held that the rea­son­able per­son is “the man (per­son) of or­di­nary knowl­edge and ex­pe­ri­ence”.

“Rea­son­able­ness” is ul­ti­mately the mea­sure which de­ter­mines whether an em­ployer’s con­duct com­plies with the act, the reg­u­la­tions bind­ing in terms thereof and/or the com­mon law.

Non-com­pli­ance by an em­ployer

Pic­ture: THINKSTOCK

A DUTY OF CARE

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