Workplace health and safety is absolutely critical – one life lost, is a life too many.
South Africa’s Health and Safety Laws, the Mine Health and Safety Act (MHSA) in respect of the mining industry and the Occupational Health and Safety Act (OHSA) in respect of the non-mining industry, set out stringent requirements regarding workplace health and safety. Responsibilities are placed on the “employer” but both the MHSA and OHSA also place responsibilities on employees for their own health and safety, and the health and safety of fellow employees.
A breach of the health and safety responsibilities placed on employees, constitutes a breach of the MHSA and OHSA respectively, and employees can be prosecuted, criminally, for such a breach, and in certain circumstances, they can face charges of culpable homicide.
Employers typically implement “zero tolerance” policies in support of their health and safety obligations in terms of the MHSA and OHSA, and non – compliance is typically taken very seriously, and even a first transgression can result in dismissal.
Recent cases have endorsed the transition from an extremely criminalistic approach to discipline in the workplace, to a more de-criminalised approach. Unfortunately, many employers still have old-style disciplinary codes and procedures in place which endorse the criminalistic approach to disciplinary action, often including extremely technical processes and procedures that must be followed. The de-criminalised approach focuses more on ensuring that key principles such as employees knowing what they are meant to have done wrong and being given an opportunity to respond, are applied.
An important question is whether a health and safety transgression, which is both serious, and potentially, a breach (criminal) of the MHSA or OHSA, can be appropriately managed within the structure of a de-criminalised disciplinary code and procedure.
While there has been a strong move towards de-criminalisation of disciplinary codes and procedures, it may not be practically possible to do so fully, and there is certainly an argument to be made that certain transgressions, including workplace health and safety transgressions and those going to the heart of honesty in the workplace, will have to remain in a special category within the disciplinary code and procedure.
What is clear, is that employers must review their disciplinary codes and procedures, to ensure that they remain relevant, and that they are aligned with the fast-paced changes in South Africa’s workplaces. This will also mean careful consideration of the multitude of new transgressions that are affecting South African workplaces as South Africa transitions even further into the digital and social era.