CAN SAFETY PRACTITIONERS IN SOUTH AFRICA BE HELD ACCOUNTABLE FOR THE QUALITY OF THEIR ADVICE?
In South Africa, under Section 37 of the Occupational Health and Safety Act of 1993, the legislator “presumes” that employers have committed the wrongdoings of their employees and contractors (vicarious liability). In a workplace context, an employer can be held liable for the acts or omissions of their employees and even contractors, provided it can be shown that the events took place in the course of their employment. Companies usually appoint CEO’s, as required by Section 16 of the Act, to ensure compliance with the OHS Act and other applicable HSE legislation.
Should an incident occur, as a result of willful misconduct or negligence, the CEO, as the employer representative, will have to prove three things in order to counter the presumption-in-law as contained in Section 37 of the OHS Act:
- Firstly, the CEO must prove that the employee or contractor was acting without the permission of the employer.
- Secondly, the CEO must prove that the employee or contractor was acting outside the scope of his/her authority and that the unsafe conduct of the employee or contractor was not a condition laid down by the employer.
- Thirdly, the CEO must prove that the employer took all reasonable steps to prevent the unsafe conduct (act or omission) of the employee or contractor from happening.
CEO’s rely on the advice they receive from their Safety Practitioners to determine what reasonable steps they can take to eliminate/mitigate health and safety risk within their companies. Having said this, Safety Practitioners in South Africa often think that the CEO of a company can only delegate responsibility but not accountability or liability to them. They don’t seem to understand that with their responsibilities comes accountability and with accountability comes liability. Accountability does not necessarily live at the very top but rather it is positioned at the most appropriate level, with the person who can be accountable for the work.
The Occupational Health and Safety Act of 1993, requires the employer to bring about and maintain, as far as reasonably practicable, a work environment that is safe and without risk to the health of their workers. However, it is not expected of the employer to take sole responsibility for health and safety. The Act is based on the principle that dangers in the workplace must be addressed by communication and cooperation between the workers and the employer. The workers and the employer must share the responsibility for health and safety in the workplace. Both parties must pro-actively identify dangers and develop control measures to make the workplace safe.
Further to the above, business owners and their employees should also know that according to Section 332 of the Criminal Procedure Act 51 of 1977, the following persons may be prosecuted individually and/or jointly with the company for deaths that occurred as a result of their negligence:
- The CEO (OHSA 16(1) Appointee)
- The Assistant CEO(OHSA 16(2) Appointee)
- Directors of the company
- Other officers such as the appointed CFO
- Company Managers
- Company supervisors and,
- The responsible employee or operator
In conclusion, the implementation of health and safety control measures is a line function. Safety Practitioners are not responsible for the implementation of health and safety controls and can therefore not be held accountable or liable for their implementation or lack of implementation. Safety Practitioners can however be held accountable for the quality of the advice they provided to their employers. Should a Risk Assessor or a Fall Protection Planner for example fail to advise the CEO properly in terms of health and safety, he/she may be held accountable and therefore liable for their poor advice.
SAPERE AUDE by Andreo du Preez
