In recent months, one opens any newspaper or listens to news bulletins and there are reports of armed robberies where people are being injured and killed.
This article will focus on the legal and moral obligations that an employer has towards their employees, as far as promoting health and safety in the workplace goes.
If one looks at law and policy, an employer has a duty to refrain from injuring or harming the employee and thus providing a safe working environment. This duty operates both in contract and delict. In delict it is no different from the duty of care each member of society owes another.
The Constitutional Court dealt with the duty of care that the State owes its citizens in Carmichele v Minister of Safety and another 2001 (4) SA 938 (CC), where a woman sued the State for failing to protect her against an assault by a criminal. The court held that there is, in some circumstances, a duty of care on the State to protect members of the public against harm and the failure to do so could give rise to delictual liability.
In assessing whether the duty of care arose in any given instance, the proportionality test was to be applied - in which the interests of the parties and the conflicting interests of the community are weighed and balanced - together with the requirements of foreseeability and proximity.
In contract it is the consequence of a term of the agreement between the parties, express or implied, to that effect. In their constituent elements the two claims are the same: each is concerned with whether the employer's conduct is permissible in principle and, if not, whether it exhibits fault.
The health and safety of employees is regulated under the Occupational Health and Safety Act 85 of 1993 (OHSAct).
The Act read with the Regulations thereto imposes a general statutory duty on an employer to provide and maintain as is 'reasonable practicable', a working environment that is safe and without risk to the 'health and safety' of employees.
Occupational health and safety
Central to the Act's approach to the regulation of occupational health and safety are the concepts of:
* Danger - anything that may cause injury or damage to person or property.
* Hazard - any source of exposure to danger.
* Risk - the possibility that injury or damage will occur.
The Risk Assessment approach of the Act requires the identification of hazards and an assessment of the extent to which they constitute a risk. This assessment will determine what precautionary measures must be taken to create a safe and risk-free working place.
Employers are also obliged, as regulated in Section 8(1)(e), to provide such information, instruction, 'training' and supervision as may be necessary to ensure, as far as is 'reasonably practicable', the health and safety at work of its employees.
There are two provisions of the Labour Relations Act 66 of 1995 (LRA) that also need to be considered.
Section 186(2)(a) defines an unfair labour practice as including ‘unfair conduct by an employer relating to ... training of an employee’.
Item 8(2)(a) of Schedule 8 provides that employees cannot be dismissed for poor work performance unless the employer has given the employee ‘appropriate evaluation, instruction, training, guidance or counselling’.
The King Report on Corporate Governance for South Africa 2002 (King Report) also needs to be considered.
Section 2 of the Report deals with risk management, it being also dealt with in item 3 of the Code of Corporate Practices and Conduct. Although the Code only applies to listed companies, financial institutions and public sector enterprises, all companies are encouraged to adhere thereto.
In essence, the board of directors of a company is responsible for assessing risks to the business on an ongoing basis, and then designing, implementing and monitoring a process of risk management and integrating it into day-to-day activities of the company.
Section 4 of the Report deals with integrated sustainability reporting. It being taken up in item 5 of the Code. The essence of these provisions is that every company should report at least annually on the nature and extent of its safety and health policies and practices and what health and safety training has been conducted.
It will be appreciated that our courts will be loath to place a general duty on all employers in the country to train and prepare all their employees to face and deal with armed robberies, as this would constitute an impossible burden. On the other hand, one can envisage that high risk positions, for example, cash-in-transit guards, bank tellers and retail cashiers, it may very well be possible to mount a sustainable case in favour of those employers involved being under an obligation to provide such training. The obligation to conduct such training can be found in contract, delict, OHS Act, the unfair labour practice definition in the LRA and the King Report.
On a proper interpretation of the OHS Act, its scope is such as to cover the danger, hazards and risks occasioned by armed robberies in the workplace, the Act provides the simplest and most compelling foundation for the need for training in armed robbery survival skills.
It would be safe to say that whether seen through the OHS Act, the LRA or the King Report, the test will amount to something along these lines. An employer is obliged to provide armed robbery survival training where:
* There is a real and foreseeable risk of the particular employee being the victim of an armed robbery while attending to their duties; and
* The conducting of such training would be reasonable practicable regarding the severity and scope of the risk.
The danger of being litigated against exists where it is proved that the employer was negligent in any way, and thus caused an injury or fatality to an employee.
Attention must be drawn to the Schedule One of the Criminal Procedure Act 51 of 1977, the offence of Culpable Homicide – ‘the unlawful and unintentional killing of another person’.
The important issue is that employers must in terms of the OHS Act and the King Report, conduct a proper assessment of their risks, on an ongoing basis, and then responsibly decide whether precautionary measures are called for. If the decision is in favour of such measures, then an Armed Robbery Survival Skills course would be an excellent mechanism for dealing with what is, unfortunately, a prevalent problem in our country.
Errol Peace is the managing director of BTC Training (Africa) and a Governor on the Board of the South African Institute of Security.
For more information contact Errol Peace, BTC Training, +27 (0)11 869 1946, [email protected]
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