In a Top Tip Tuesday published earlier today, our team member Mr. Vusumuzi Ndhlovu explored the circumstances under which the normal remedy for an unfair dismissal, namely reinstatement, would not be appropriate, within the context of the provisions of Section 193(2) of the Labour Relations Act, No. 66 of 1996 (LRA). Vusi’s article can be found here. Vusi addressed the question of the appropriate remedy for unfair dismissal under the circumstances in the matter of Sulzer Pumps SA (Pty) Ltd and Samela Nomxana & Others, case number JR455/2020, delivered on 15 July 2024 (Sulzer Judgment).
While the Labour Court in this matter had to address reinstatement as an appropriate remedy, the Labour Court also had to address substantial principles around workplace health and safety because this went to the heart of the disciplinary action against the employee who held the position of SHEQ Manager, and whether the employee had failed to carry out her duties and functions including in relation to, among others, conducting proper risk assessments and investigating six lost time injuries that had occurred in the employer’s workplace (a lost time injury is an injury sustained by the employee that necessitates the absence of the employee from work).
The Labour Court was required to address the relevant health and safety aspects within the context of the employee’s duties and functions on review by the employer following an arbitration award in favour of the employee by the Commission for Conciliation, Mediation and Arbitration (CCMA). The arbitrator/commissioner had found that, while the employee’s dismissal was procedurally fair, it was substantively unfair. On review, the Labour Court set aside the award of the arbitrator, but nevertheless (for different reasons) found that the dismissal of the employee was substantively unfair. It was within this context that the Labour Court had to determine whether reinstatement was the appropriate remedy and determined that it was not practical to reinstate the employee, and that the employment relationship had become intolerable, as contemplated in Section 193(2) of the LRA.
From a health and safety perspective, the Labour Court addressed two key principles namely carrying out proper risk assessments (including distinguishing between types of risk assessment) and the importance of identifying the root or true cause of an accident.
South Africa’s occupational health and safety is governed by the Mine Health and Safety Act, No. 29 of 1996 (MHSA) in the case of the mining industry, while the Occupational Health and Safety Act, No. 85 of 1993 (OHSA) applies to non-mining operations/workplaces.
Both the MHSA and OHSA require employers to conduct risk assessments aimed at identifying the hazards and risks in a workplace, together with the controls that must be implemented, to prevent the risk from eventuating. Risk assessments are a fundamental point of departure of any health and safety system that is implemented in compliance with the MHSA and OHSA. If proper risk assessments are not conducted, this impacts on the effectiveness of the entire health and safety system, and a potential failure in the risk assessment process, which typically leads to “gaps” or failures within the elements of the health and safety system including the measures that are implemented to address the identified hazards and assessed risks, such as codes of practice, standards, procedures and instructions, the training that is provided, and the over-inspection systems that are implemented to “close the loop” i.e. it is logical that if a risk is not identified, that risk and the relevant controls will not be included in a standard operating procedure/procedure, the training provided to employees, and the over-inspection system.
Both the MHSA and OHSA require incidents, occurrences and accidents to be investigated, to identify the cause of the incident/occurrence/accident, and to identify appropriate remedial measures to be implemented, to prevent a recurrence. Unless the true cause of an accident is identified, the natural consequence is that the remedial measures that are identified may not be effective in preventing a recurrence.
In relation to the obligation to carry out proper risk assessments, the Labour Court in the Sulzer Judgement found that the employee’s failure to ensure an adequate safety regime in two key areas at the employer’s premises, based on a proper risk analysis, was serious, and, as a result, employees were exposed to serious risk. The Labour Court held “the evaluation of the extent of the risk was seriously inadequate … but her own statement demonstrates she was not in a position to determine the adequacy of the perspex screen, so she was not in a position to be confident of the assessment or preventative measures proposed. Despite that … she did not see the need to request expert advice on the issue of what measures would provide a sufficient degree of safety. This reflected a significant deficiency in the risk assessment strategy she was responsible for managing” (paragraph 47).
In relation to identifying the root or true cause, the Labour Court held “[the employee’s] view, as expressed in the report on the lathe incident, was that the analysis did not need to go further than identifying the immediate causes of the accident and did not have to deal exhaustively with the entire chain of causation which led to the incident. This demonstrated that the analysis she was prepared to accept was insufficient” (paragraph 48).
The Labour Court continued and stated “these deficiencies in [the employee’s] performance of her duties are ones that Sulzer would have been negligent to ignore, given the safety and liability ramifications of inadequate risk assessments and accident investigations” (paragraph 49).
The Sulzer Judgment is an extremely useful judgment which canvasses key principles around health and safety in the workplace.
As mentioned above, the Labour Court substituted its judgment for the award of the arbitrator by finding that, despite the employee’s failure to address key elements such as the risk assessments and the investigation into the LTIs, the employer had not identified the employee’s failure to meet her key performance indicators and the responsibilities of her position as a SHEQ Manager and raised these with her, before taking disciplinary action. This reconfirms another critical principle in South Africa’s employment law namely that an employer must raise concerns regarding an employee’s performance (whether it is a performance shortcoming or a failure to comply with key performance indicators), communicate these shortcomings/performance areas to the employee, and, where appropriate, give an employee an opportunity to address the concerns.
Health and safety in the workplace remains an employer’s top priority and it is only by ensuring that proper risk assessments are conducted, that appropriate measures can be implemented to address the identified hazards and risks. Similarly, it is critical to identify the true or root cause of an incident, so that the remedial actions that are implemented are directly related to the root or true cause.