General duties of employees at work and the rights of the employer
27 September 2017
Posted by: Tasveera Singh
There is much hype about the employee’s rights and quite rightly so, but, what about the employer? Does the employer have any rights?
Section 14 of the Occupational Health and Safety Act, Act 85 of 1993 is very specific regarding the health and safety behaviour of employees. An employer’s efforts to maintain a high level of health and safety needs the cooperation of the employees to make the system work.
Every employee shall at work:
Section 14(a) “take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions”
An employer has the right to expect his or her employees to be reasonable persons who endeavor to work safely and remain vigilant ensuring that they do not compromise any person’s health and safety.
An employee is any person employed by the employer and includes the most senior managers. This sub-section makes it clear that all employees are responsible for ensuring that they keep to the health and safety programme implemented by the employer.
Section 14(b) “as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with”
Cooperation is a basic requirement within any team. In health and safety, lack of cooperation is an accident waiting to happen. When an employee disregards the employers attempt to create a healthy and safe working environment, that employee then loses the right to be employed in that environment.
Section 14(c) “carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety”
When an employee contravenes or disobeys the health and safety rules and procedures of an employer, that employee is actually contravening an act of Parliament. This sub-section makes the employers health and safety rules and instructions as legally binding as if they had been signed by the State President and promulgated into in the law of the country. This is due to the fact that the OHS Act has been signed by the State President and Section 14(c) is part of the OHS Act.
Where does this leave an employer when an employee disobeys the health and safety rules and procedures of the employer? This simple fact of the matter is that the employer can use section 14 as a disciplinary tool in view of the fact that the employee would have committed a criminal offence by his actions. Most employers include a clause in their disciplinary code and procedures that if an employee is proved to have committed a criminal offence, the employer can then discharge that employee. It is strongly suggested that employers should discuss this matter with the unions that represent the employees and come to an understanding of the seriousness of this sub-section.
Section 14(d) “if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer”
Employers should instruct and train employees to report any unhealthy or unsafe situation. The employer should create a culture of safety first, so that when an unsafe situation is discovered by an employee, that employee will not be embarrassed by a negative attitude to stopping machinery or holding up production while the situation is rectified.
Some employers have a reward-system for legitimate unhealthy or unsafe situations that are reported, especially when serious injury is prevented by the diligence of an employee. This type of approach of encouraging an employee along a positive mind set, works much better than threats of prosecution etc.
It is, however a fact that if an employee is aware of an unsafe situation and does not report it, and an accident occurs as a result thereof, that employee could be held liable in terms of this section 14 for not taking the required action to rectify the situation.
Section 14(e) “if he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.”
Unreported incidents could be the cause of a similar incident occurring or of employers refusing to accept that the incident occurred at work. This could have very serious consequences for an injured person when the medical bills come in or when ongoing medical treatment is required.
Employers should establish a system of reporting that makes it easy for employees to report incidents that they have been involved in, or of incidents that others have been involved in and have not been reported.
Neil Enslin | Health and Safety Manager