Are you aware how severe health and safety non-compliance penalties can be? Do you know how you are at risk of incurring these penalties, according to the Occupational Health and Safety Act (OHS Act)? Maybe? Maybe not? And here lies the problem. Sometimes, it isn’t wilful disobedience of health and safety legislation (although sometimes it is). Sometimes, companies will find themselves breaching the finer details of the OHS Act or SHE legislation entirely due to lack of knowledge.
It’s essential you know what can incriminate you. In today’s blog, we want to help you avoid being slapped by heavy fines, by showing you all the different ways you could be violating the Act – and not even know it.
Penalties (or punishment) can vary
Penalties can range from light ones, which the Department of Labour (DoL) can order a corrective measure to be implemented as soon as possible with just a warning or slight fine, to much more severe ones, such as the shutting down of the premises or jail time served by the company owners.
Refusing to act is just as bad as acting in the wrong way
If you refuse to do any of the following, you are in direct contravention of the OHS Act:
- Appear before an inspector
- Fail to remain in attendance at a subpoena until the inspector excuses you
- Be sworn or to make affirmation as a witness after being directed to do so
- Answer or fail to answer (to the best of your knowledge and belief), any question posed to you by a DoL inspector
- Comply with a requirement to produce:
- a book
- a document
- anything specified in a subpoena
- anything you are in possession of.
When are your actions wilfully non-compliant?
If you act in any of the following ways, you are guilty of contravening the OHS Act:
- Offer information or make a statement that is false in any material respect.
- Hinder or obstruct an inspector in the performance of his functions.
- Pretend to be an inspector.
- Tamper with or discourage, threaten, deceive, or in any way unduly influence someone with regard to evidence they need to give or with regard to a book, document or thing they need to produce.
- Prejudice, influence or anticipate the proceedings or findings of an inquiry.
- Tamper with or misuse any safety equipment installed or provided by an employer or user.
- Fail to use any safety equipment at a workplace or in the course of your employment (or in connection with the use of plant or machinery), which your employer provides.
- Are reckless in the use of any machinery or equipment your employer provides (which could endanger the health and safety of you or anyone else).
When is an employer liable for contravening OHS legislation?
If you as an employer fail (or an employee with an employer who fails) to do any of the following in the promotion of health and safety in your workplace, you could be penalised by the DoL.
- Provide and maintain a safe, healthy work environment that is without risk to employees.
- All employees have the right to be informed. An employer must ensure each employee clearly understands the health and safety hazards of any work being done, anything being produced, processed, used, stored, handled or transported, and any equipment or machinery being used. The employer must then provide information about precautionary measures against these hazards.
- Employees have the right not to be victimised by the employer. No employer may dismiss an employee from their service, reduce an employee's salary or alter or reduce an employee's service position to terms or conditions that are less favourable to the employee, because:
- the employee supplied information required from them (in terms of the Act) to a person that is charged with administering the OHS Act
- the employee complied with a lawful notice (such as a contravention notice or a prohibition notice)
- the employees does something that (in terms of the Act), should have been done
- the worker did not perform an action or do something prohibited by the Act
- the worker has given information or evidence before a Labour Court or a Court of Law on a matter regarding health and safety.
- The employer must provide the necessary information, instructions and training to employees.
When is an employee liable for contravening OHS legislation?
Although the OHS Act largely places the duty for health and safety on the shoulders of management, the workforce are also bound to comply with certain legal prescriptions.
- It is the duty of every employee at work to take reasonable care for the health and safety of himself and others.
- The unsafe acts of the worker may not negatively impact or endanger others. Other persons normally include co-workers, contractors, visitors and even the public.
- The employee is also duty bound to co-operate with the employer where the OHS Act imposes a duty or requirement to be performed or complied with. Workers are legally bound to comply with the prescriptions of the OHS Act.
- Employees should always carry out and obey lawful orders and obey the health and safety rules and procedures laid down by the employer.
- If any unsafe or unhealthy situation is observed by an employee, he or she must report it to the employer or to the health and safety representative of the workplace.
- Whenever an employee is involved in any incident or observe any unsafe or unhealthy situation, it must be reported to the employer or the health and safety representative. These incidents need to be reported as soon reasonably practicable, not later than the end of the particular shift. An employee may also give information to an inspector from the Department of Labour when required.
- No employee may intentionally or recklessly interfere with damage or misuse things provided for health or safety; this includes safety equipment and personal protective equipment, firefighting equipment, etc.
Employee involvement is just as important as management involvement. Health and safety involves all levels of the workforce, from the top to the bottom. Employee involvement should be encouraged by management. It is important to establish participation, communication and trust between the various role players in order to create a positive safety culture.
Let’s talk about money… and prison.
There are actual penalties that both employers and employees are liable for in certain circumstances. Let’s take a look at them.
- An employee that contravenes a section of the OHS Act could be prosecuted. They could receive a fine, penalty and even imprisonment (a maximum fine of R50 000 or imprisonment for a period not exceeding 12 months, or both such a fine and such imprisonment).
- An employee who wilfully or recklessly does anything at a workplace, or in connection with using plant equipment or machinery, which threatens the health or safety of any person, shall be guilty of an offence and on conviction be liable to a fine not exceeding R50 000 or to imprisonment for a period not exceeding one year (or to both such a fine and such imprisonment).
- Any employer who does or omits to do an act is guilty of an offence if that employer or user, would in respect of that act or omission be guilty of the offence of culpable homicide had that act or omission caused the death of the said person, irrespective of whether or not the injury could have led to the death of such person. On conviction the employer would be liable to a fine not exceeding R100 000 or to imprisonment for a period not exceeding two years (or to both such a fine and such imprisonment).
- Whenever a person is convicted of an offence where they have failed to comply with the Act (or of any direction or notice issued thereunder), the court convicting them may, in addition to any punishment imposed on them (in respect of that offence), issue an order requiring them to comply with the said provision within a period determined by the court.