I have worked in health and safety in the workplace since 2001. As a trainer and educator, I aim to make complex, legal writings as understandable as possible. I am not a lawyer but did study 5 years of law subjects in my Business Training. This should bring clarity on the legal liability that applies to the CEO of a company or a department of the State.
The Occupational Health and Safety Act [ OHS Act 85 or 1993 – as amended] makes some demands on the CEO of a company in Section 8. CEO refers to the highest decision-maker, so their title may be different. I will focus on the top demands they have to consider.
1 – to ensure a workplace that is safe and free from harm. That means to provide working conditions for everyone under their control as directed by the Constitution. Some ask why is this needed? Certain work activities can pose risks of causing you health problems or result in a physical injury or even death.
2 – the key to the imposed duty above is to perform Risk Assessments. There are several ways to do this. The most effective is to examine the tasks each worker performs and apply risk-based thinking to that task. This is a complex exercise best carried out by correctly trained persons. It has to come to a conclusion that the task has occupational risks attached that could give rise [cause] harm or injury to the workers health or body. Then preventative measures have to be put in place to stop the harms.
For example
- engineering controls [design],
- administrative controls [methods of work – procedures on how to work safely],
- other controls that can work and finally,
- where we can add personal protective equipment [PPE] and continue to work, this is done.
If none of these can work, we stop that activity in the interests of safety.
3 – Inform and train the workers. It is the duty of the CEO to ensure that
- all risks are identified and that
- you, the worker know about these risks and
- what to do about them.
That also means monitoring or checking that the steps taken for safety and health are working as intended.
The CEO also carries a personal legal liability for duties under the OHS act. Please note that a registered Company is a Juristic Person [ a legal entity in law], but the officers of the company are legal persons who act for the company. The duties in the OHS Act under section 37(1) apply to the persons, specifically the CEO at the top.
It is interesting to note that the wording speaks about acts and omissions.
In simple terms:
Acts – a thing you do or did,
Omissions – a thing you should have done but did not do.
This also applies to workers, but the law starts with the Employer, the CEO. And where something has gone wrong the CEO is first asked 3 key questions:
a) Was the employee acting without the influence, or permission of the employer? So I say: Did the act arise only by an action of the employee that was not authorized or permitted?
b) Was this act or omission within the scope of authority of the employee? So I say: did the employee know, was informed, was trained, was monitored or supervised, was corrected when observed to deviate, was instructed properly about that scope of authority? Note: The scope of authority has to be reasonable, just, fair, and not in conflict with the Constitution or the fundamental rights of the employee.
c) Were all reasonable steps taken will be examined. An in-depth look will be taken into the instruction(s) issued to establish whether it was lawful, just, fair, and in line with the Constitution and the fundamental rights of the employee.
If you, the employee, knew to do something or not to do it and went ahead anyway, you can be prosecuted in a Court of law. You can’t assume you can push this onto the CEO. In like manner, the CEO cannot issue instructions or fail to issue suitable instructions that resulted in injury, ill health, or death, and think they can lay this as an act of ‘human error’ at the feet of the employee. Both will be adjudicated through prosecution and deep examination in a Court of law. Violations reasonable steps that could have prevented the act or omission, taken by the Employer? So I say: here the employer will have to answer whether he or she has complied with section 8 [ see above] of the Act to its Fullest Extent, as well as with other relevant sections of this Act [including the Regulations].
properly protected. Otherwise, the CEO will be DEEMED to have committed the act or omission themselves. They can be prosecuted for failure to have discharged these duties in their personal capacity [cannot say ‘the company’ is at fault] even if it was done or not done by an employee!
Does your CEO actually know their duties and legal obligations as imposed on them by the OHS Act?
A final point: when considering the acts or omissions that may be laid at the feet of the CEO, the of an Act of Parliament are criminal in nature.
Conclusion: Everyone needs to respect the needs of a safe and healthy workplace with regard to everyone else. This includes visitors and contractors. I hope this article has given you, the reader, some insight into this small part of the OHS Act. If you work from home under the “direction and control” of your employer, that may have to be a subject for another day.
