The right to refuse to carry out dangerous work or comply with unsafe instructions on health and safety grounds, commonly refer to as the “stop work authority”, is a right which is embedded in Section 23 of the Mine Health and Safety Act, No. 29 of 1996 (MHSA), and Section 14(d) of the Occupational Health and Safety Act, No. 85 of 1993 (OHSA). Investigation into high potential incidents and accidents, including those that have resulted in fatalities, repeatedly show that, had the “stop work authority” been exercised, the incident or accident would, in all probability, have been avoided. If exercised properly, the “stop work authority” has the potential to save lives.
Unfortunately, there have been several instances where the “stop work authority” has been used for ulterior purposes or has not been applied correctly.
Where the “stop work authority” is not used correctly, the starting point is to determine whether employees have been made aware of the “stop work authority” (and their right to exercise the “stop work authority”), the grounds on which the “stop work authority” can be exercised, and the procedure to be followed. If an investigation reveals that there are shortcomings in relation to any of these elements, then re-training must take place, to ensure that the “stop work authority” is exercised correctly.
Where the “stop work authority” has been used for ulterior purposes, the focus turns to possible disciplinary action, and typically, the “defence” of employees who have faced disciplinary action is that they were exercising the “stop work authority” on legitimate health and safety grounds.
On 14 October 2025, the Labour Court handed down a judgment in the matter between National Union of Metalworkers of South Africa on behalf of Sipho Nkosi & 4 Others, and PFG Building Glass Proprietary Limited & Others under case number JR 2099/2022 (PFG Judgment).
Various persons employed by PFG were charged with incitement and gross insubordination based on their refusal to join a meeting that was scheduled, influencing other employees not to attend the meeting, and refusal to comply with an instruction to join the meeting.
The employees were found guilty by the disciplinary chairperson and dismissed.
The employees conceded that they had refused to attend the meeting and argued that they refused based on safety concerns regarding the meeting venue including that there were moving forklifts transporting broken glass to be reprocessed, there was a cold storage facility at the venue and a noisy extraction fan (Safety Concerns).
The employee and the trade union did not lodge a grievance or complaint about the Safety Concerns and the employees simply refused to attend the meeting.
PFG, the employer, contended that the employer’s disciplinary code and procedure prescribed dismissal even for a first offence in relation to “gross insubordination, serious disrespect, impudence or insolence”.
The Labour Court, on review, upheld the decision that the dismissal was fair for various reasons including that the instruction to attend the meeting was given to the individual employees by more than one senior person, those persons who issued the instruction had the authority to give such instruction, the instruction was work – related and the instruction was defied on more than one instance in the presence of fellow employees. The court also referred to the fact that the employees did not lodge a grievance or formal complaint regarding the Safety Concerns and the individual employees showed no remorse for the refusal to attend a work-related meeting.
The health and safety framework of the OHSA applied in the circumstance and raising of grievances or complaints in terms of the relevant work – place procedures in place, is more typical because the OHSA does not prescribe the exercise of the “stop work authority” in the same level of detail as Section 23 of the MHSA. In the mining environment where the MHSA applies, Section 23 of the MHSA requires procedures to be in place regarding how the “stop work authority” must be exercised, and unless the correct procedure is followed, the exercise of the “stop work authority” may not be justifiable and employees may also face disciplinary action.
The Labour Court, in dismissing the review application essentially reconfirmed that the exercise of “stop work authority” is dependent on legitimate safety grounds and following the appropriate procedure (in this case, a grievance or complaint procedure). The PFG Judgement is a reminder that health and safety, which is a key responsibility, should not be abused.
Should you require any more information, please contact Warren Beech at warren@bv-inc.co.za.
Disclaimer: This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.