Legal liability is becoming a serious and growing concern for all organisations (not just construction companies) as it seems that government is starting to clamp down on employers concerning the health and safety of employees.
On the 7th of February 2014, a notice under Section 43 of the Occupational Health and Safety Act of 1993 was added and more stringent construction regulations were published and put in place, repealing the Construction Regulations of 1943. These new regulations now impose much stricter health and safety obligations on all parties involved in construction work. It impacts the client/owners, sub-contractors, the designers (whether architect, engineer or both) and the principal contractor/s.
The act and the regulations impose obligations on employers, manufacturers, users and mandatories to ensure, as far as reasonably possible, the health and safety of employees whilst they are working. Adding to existing legal liability; it is now a requirement that the appointment and responsibilities of a construction manager include and incorporates the duties of managing all the construction work on the site, including the duty of ensuring occupational health and safety (OHS) compliance.
The consequences of legal liability can be severe, but may be felt in different ways, for example:
• Department of Labour (DOL) inspection – immediate shut down of operations/activities until they are satisfied that you have adequate measures in place and you are complying with legislation.
• Criminal prosecution of the employer, (owners; directors; executives).
• Criminal prosecution of the individual.
• Civil action against the employer (COIDA Sections 35 and 56).
• Civil action against the individual.
This could result in:
• Imprisonment, financial penalty/fine, or both.
• And subsequent increase in workmen’s compensation tariffs.
• And additional compensation to the injured.
• Another remedy the court may order.
The result may be the loss of business and clients, an increase in operating costs, divesture of investment companies, bad reputation in the job market and industry, and worst of all, even loss of life.
Two important principles in South African law and case law are important to understand when it comes to legal liability. First, ignorance of the law is no excuse. This means that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.
Secondly, the duty of care. This means that one (employer, owner, director, executive, individual) has an inherent legal duty and responsibility to take reasonable (due care) steps/action to abide by legal requirements, for example, regarding the health and safety issues of your employees.
For more information contact Elmarie Bissett, Crest Advisory Africa, +27(0) 83 399 5773, [email protected]
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