Employers of mines are responsible to ensure that working places of employees are healthy and safe, as far as reasonably practicable. The question that arises, is what criterion governs the question whether a working place is considered healthy and safe or not?
Pieter Colyn and Celeste Coles, both directors in the Mine and Occupational Health and Safety Department of ENSafrica, often deal with a misconceived assumption that merely because an accident occurred in a working place (for whatever reason), which resulted in an injury to, or death of a person, then such a working place is automatically classified as being unsafe and hazardous to health. An employer is then placed in a situation where it is accepted that it failed to comply with its obligations. Such an assumption is incorrect in the large majority of cases dealt with by Pieter and Celeste.
To draw a conclusion whether a working place is healthy and safe (or not), objective criteria must be applied. In South African Law, health and safety on mines is governed by both the Mine Health and Safety Act, 1996 (“the MHSA”) and the regulations binding in terms thereof, as well as the common law (Roman Dutch law, as amended by statutory laws and interpreted by our courts). In this regard, Celeste Coles points out that an employer’s obligations are not only derived from common law and the MHSA, but may also arise from contracts which may exist (for example, between an independent contractor company and the employer) and guidelines and instructions issued by the Mine Health and Safety Inspectorate (the relevant regulator) of the Department of Mineral Resources.
The MHSA and regulations which are binding in terms thereof, contain various provisions dealing with an employer’s obligation to provide a working place, which is healthy and safe, as far as reasonably practicable (see for example sections 2, 5, 7, 10 of the MHSA). The standard of care, which the MHSA requires of the employer is, in most instances, one of reasonable practicability. This phrase is defined in the MHSA. The measures taken by an employer at a working place must take into account the particular hazard or risk concerned. Pieter Colyn points out that the standard of care is a dynamic one and must take cognisance of developments in the relevant industry. The test of practicability is an objective one which must be evaluated in the context of the particular work.
In order for an employer to demonstrate a system which is healthy and safe, as far as reasonably practicable and which ensures a healthy and safe working environment, a holistic approach must be adopted. In other words, an employer may elect to use a number of measures to ensure healthy and safe working places, as far as reasonably practicable. Various examples of measures are cited by Pieter Colyn and Celeste Coles, which may be included in a health and safety system. An employer may rely on, amongst others, formal and informal training of employees; an organisational structure of experienced and competent persons; equipment, which is safe and does not endanger the health of persons; systems of work which are safe and which do not expose persons to unhealthy conditions; health and safety standards and procedures; supervision and proper discipline; maintenance procedures; and risk management.
In other words, one must objectively consider whether a working place is safe, as far as reasonably practicable and not hazardous to health, by referencing and analysing the abovementioned measures. If one health or safety measure on which an employer relied was not effective, it does not mean that the working place was unsafe or hazardous to health.
The statutory measures of health and safety (as set out in the MHSA and regulations binding in terms thereof) must be interpreted in light of the common law duty of care. In general, the duty of care means that the employer, acting personally or through its agents, must take reasonable care for the safety of its employees. Our courts have used the standard of the reasonable person as the criterion to determine the reasonableness of conduct. Our courts have held that the reasonable person is “the man (person) of ordinary knowledge and experience”.
“Reasonableness” is ultimately the measure which determines whether an employer’s conduct complies with the MHSA, the regulations binding in terms thereof and/or the common law.
Non-compliance by an employer with its obligations to ensure a healthy and safe working environment, as far as reasonably practicable, as set out in the MHSA and regulations binding in terms thereof, is a criminal transgression and employers may be criminally charged in this regard. If such failure led to a person being fatally injured, then the employer may also be charged with culpable homicide. In addition to the aforementioned conduct constituting criminal transgressions, an administrative fine may also be imposed on the employer in terms of the MHSA. The Minister of the Department of Mineral Resources published a draft Mine Health and Safety Bill during November 2013. One of the proposed amendments relates to the maximum fine that may be imposed should an employer be found guilty of contravening the provisions of the MHSA and regulations binding in terms thereof. It is proposed that a fine may be imposed “…not exceeding 10% of the company’s annual turnover for the period during which the company has failed to comply with the relevant provisions…” This provision (if enacted) will place a heavy financial burden on mines.
It therefore remains exceptionally important for an employer to continually assess and analyse its systems and measures, including employees’ compliance with their duties and obligations by means of an appropriate risk assessment and management process to provide a healthy and safe working environment, as far as reasonably practicable.