What The Law Says: Workplace Injuries, Illness And Death

What The Law Says: Workplace Injuries, Illness And Death

The Occupational Health and Safety Act (OHSA)(1), South Africa’s main law regulating workplace health and safety, is often thought to apply only to the production and manufacturing industries because of the Act’s reference to “systems of work, plant and machinery” associated with the “production, processing, use, handling, storage or transport of articles and substances”. Although the wording could justify thinking like this, it is important to know OHSA applies to all employers, who are required to provide and maintain a safe working environment for employees.

Why is it important to comply with OHSA? 

The wording of OHSA makes you think of a factory or manufacturing plant, or a building site, either with heavy, metal scraping machines, high cranes, steam and smoke pouring out and employees walking around in hard hats, goggles, and heavy work boots. Although this might make you think that OHSA only applies to the building, manufacturing and production industries, you need to understand that it applies to all employers, which includes anyone employing or providing work to another person, and paying, or committed to paying, that person.  It is important to realise the impact that workplace injuries can have on productivity, employee motivation and morale (2), as well as potential damage to your reputation. And not only this, there are penalties imposed by OHSA for failure to comply and ensure workplace health and safety, so it is in your own interests to take workplace health and safety seriously and make it a priority in your business.

What does OHSA say about the responsibilities of an employer?

As an employer, you have a duty to provide and maintain as far as reasonably practical a safe working environment[3] First of all this includes identifying any potential risks or hazards that may affect your employees’ health and safety at work. Once you have identified these risks or hazards, you need to take measures to eliminate or protect employees against the risks by providing them with the right information, protective equipment, training, and supervision. You need to do all that is reasonably possible to make the workplace safe and free from any risks of hazards. 

Sometimes it is impossible to completely remove a potential hazard and in this case you need to inform employees of the  dangers, provide training and guidance on how to prevent any accidents or what to do if something happens. Where necessary, you can also use a trained and experienced person to supervise an employee who is new or doesn’t have the necessary experience to perform a risky job. 

Let’s look at Mr John Doe, who runs a successful software company and whose employees are mostly working in an office and at individual desks. Mr Doe has a duty to ensure all potential risks and hazards are eliminated in the workplace, from ensuring that the roof will not collapse or that wet floors are clearly indicated with a warning sign to prevent slipping, to  ensuring that the appliances in the staff room, such as the kettle or coffee machine, and equipment like laptops, printers and scanners, are functioning properly and in good working order. He has to take all necessary steps, to prevent the possibility of harm or injury to any of his IT staff, for example, being electrocuted by the leaking kettle or burned from a faulty scanner. Although this kind of situation is extreme and unlikely, it is still your duty to make sure everything is in a safe and working order and at the very least will reduce the possibility of injury, illness or even death resulting from using company equipment. 

What about the responsibilities of employees to ensure their own safety? 

OHSA is based on the principles of cooperation and communication between employers and employees so it also makes it the responsibility of employees to act proactively in identifying potential risks and hazards at work and to take steps to develop and implement measures to eliminate them [4].  Employees have a duty to protect their own health and safety,  and also that of colleagues or people who may be affected by their actions. They also have a duty to cooperate and comply with lawful orders that you give regarding health and safety and to report any risky, hazardous or dangerous activity. 

So Joe X, an IT specialist employed by John Doe, has a duty to take steps to protect his own health and safety and that of his colleagues, such as not operating electrical appliances with wet hands. If there is a situation that Joe X knows may cause or an incident that has caused harm or injury to himself or a colleague, then he  must report this to his employer as soon as possible. For example, a printer at work was giving off smoke and overheating, and Kwena, Joe X’s colleague, suffered a shock when he tried to use it.  It would be Joe X’s responsibility to immediately report this to the employer [5].

Creating additional support for health and safety at work

Given the ongoing and important task of ensuring workplace health and safety, OHSA provides for supporting employer and employee structures to assist in ensuring workplace health and safety.

If you employ 20 or more employees [6], you have to appoint health and safety representatives with one representative appointed for every 50 employees [7]. Your health and safety representatives are responsible for a range of duties including doing audits at work to ensure health and safety measures are in place, identifying potential hazards and risks to employee health and safety at work,  investigating incidents affecting employee health and safety, and making representations to you or to the health and safety committee in regard to matters concerning the safety of employees at work [8]. 

Health and safety representatives do not do safety inspections, audits and investigations alone. Depending on the number of employees, for example, if there are more than 100 employees in a workplace, there might be two or more representatives, who work together on these tasks and will form health and safety committees [9]. The committees will generally be appointed for a specific purpose, period and department or section. They can make representations to the employer on health and safety matters, discuss and report any workplace incidents that lead to employee injury, illness or death and perform any additional functions that are required by law [10].

So there are obligations, but who monitors health and safety compliance?

The question is: how will anyone know whether John Doe, who employs 200 employees at his Software company, is complying with OHSA requirements? 

Well, the Department of Employment and Labour, with at least one office in every province, monitors compliance with OHSA [11]. Health and safety inspectors  carry out inspections and investigations of health and safety measures at workplaces either on a scheduled or unscheduled basis [12]. Where a particular workplace is known to use, produce, store, handle or transport potentially dangerous materials and substances, such as in a chemical manufacturing plant, then scheduled investigations will take place regularly to ensure safety measures and precautions are properly implemented and followed [13]. Unscheduled inspections can also take place if an employee or member of the public lays a complaint to the department regarding the health and safety of a workplace [14]. 

The department can also serve an improvement notice on you to implement more effective health and safety measures. They can prescribe certain corrective measures that must be implemented and will check this at the next inspection date [15].  

If an inspector is not satisfied with the health and safety measures in a workplace they can  prohibit certain workplace activities until improvements have been made or issue a contravention notice that can result in immediate prosecution for failure to comply with the OHSA. A certain  period of time is usually given with a contravention notice to allow time to fix the problem but if you fail to do this it could result in a criminal prosecution which will have a negative impact on your business [16]. Remember that as an employer you are liable for the actions of your  employees at work, and if your employees fail to comply with OHSA, you could be liable on conviction to either a R50 000 fine or one year imprisonment.  The fine can be increased to R100 000 or two years imprisonment if the non-compliance with OHSA lead to the serious injury  or even death of an employee [17]. 

Good for John Doe. He seems to be doing everything right! He has appointed four health and safety representatives and formed a health and safety committee for each of his departments to help him with his OHSA duties. They help him to identify  potential risks and hazards and decide what precautionary measures to put in place. He also provides his employees with annual health and safety training and guidance on how  to avoid the risks and hazards that could cause any injuries.

Summing up

Whether you are a start-up or large corporate, workplace injuries, illness and accidents is something you want to avoid given the significant impact it may have on your business. Not only can non-compliance with OHSA result in fines, penalties and even imprisonment, it will also negatively affect your employees  and their productivity. If someone is injured or ill as a  result of a workplace  incident and has to take time off to recover, it means the remaining employees need to do  the work of the absent employee, which in turn adds to workload and leads to overworked and stressed employees. Concern about safety can also create fear in employees regarding their own health and safety. This can reduce their output, morale and motivation, which all add up to reduce workplace productivity and ultimately profits [18].  So, understand that it is in your company’s interest to take workplace health and safety seriously and make it the priority it deserves to be. 

  • [1] No. 85 of 1993
  • [2] [N Cloete “Common Workplace Accidents and How To Prevent Them” The South African (15/06/2021) accessible at Common workplace accidents and how to prevent them (thesouthafrican.com) (last accessed 17/08/2022) 
  • [3] Section 8(1) 
  • [4] Annon. “Health and Safety in the workplace ;Information provided by the Department of Labour” Labour Guide accessible at https://www.labourguide.co.za/health-and-safety/739-what-every-worker-and-employer-should-know-about last accessed 28 August 2022. 
  • [5] Section 8 ; Section 14 
  • [6] section  17(1)
  • [7] Section 17(5) 
  • [8] Section 18
  • [9] Section 19 
  • [10] Section 20
  • [11] L Gordon-Davis & P Cumberlege “The Hospitality Handbook on Legal Requirements For Hospitality Businesses” 4th edition (2017) pp274 
  • [12] Section 29 
  • [13] L Gordon-Davis & P Cumberlege “The Hospitality Handbook on Legal Requirements For Hospitality Businesses” 4th edition (2017) pp274
  • [14] L Gordon-Davis & P Cumberlege “The Hospitality Handbook on Legal Requirements For Hospitality Businesses” 4th edition (2017) pp274
  • [15] L Gordon-Davis & P Cumberlege “The Hospitality Handbook on Legal Requirements For Hospitality Businesses” 4th edition (2017) pp274
  • [16] L Gordon-Davis & P Cumberlege “The Hospitality Handbook on Legal Requirements For Hospitality Businesses” 4th edition (2017) pp274 
  • [17] L Gordon-Davis & P Cumberlege “The Hospitality Handbook on Legal Requirements For Hospitality Businesses” 4th edition (2017) pp 283[18] [N Cloete “Common Workplace Accidents and How To Prevent Them” The South African (15/06/2021) accessible at Common workplace accidents and how to prevent them (thesouthafrican.com) (last accessed 17/08/2022)