OHS Act Legal Appointments & Ultimate Responsibility

OHS Act Legal Appointments & Ultimate Responsibility

Controversy exists around who will be blamed if something goes wrong in a company where the requirements of the Occupational Health and Safety Act, 85 of 1993 were not adhered to. The problematic issue here is the fact that the employer can be a legal persona which includes a natural (human beings) and juristic persons (e.g. company). A Juristic person is not necessarily a person one can talk to, and therefore difficult to bring to justice.
According to Section 8 of the OHS Act, all employers must, where reasonably practicable, provide and maintain a safe, healthy working environment that is without risk to employees.

The person primarily responsible for ensuring a safe and healthy work environment is the Chief Executive Officer or person deemed to be the Chief Executive Officer of the organisation. The Chief Executive Officer is defined in Section 1 as follows:
“In relation to a body corporate or an enterprise conducted by the state, means the person who is responsible for the overall management and control of the business of such body corporate or enterprise.â€
In the case of a company with a board of directors, the managing director or the person with the highest authority or control over decisions made by the board of directors is regarded as the chief executive officer.

OHS Act Legal Appointments

The Health & Safety Act stipulates in section 16 that the Chief Executive Officer is charged with certain duties:
“(1) Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly dischargedâ€.

In theory the CEO is ultimately responsible and liable for the Health & Safety of the employees in a company. However this is not necessarily the case in practice. The reason for this is the size and complexity of companies in South Africa. To prove that a CEO had any control over a matter or situation on a site far from where he sits at Head Office is difficult at best of times.

This situation however is different where a 16(2) is present at the site and has control and provides direction. In this case such a 16(2) will ultimately be responsible and liable for what happens on his site, taking into consideration he/she is appointed by the 16(1) to assist in his/her function due to the fact that he/she has control over such site.

The implication hereof is that the 16(1) must have a general knowledge or idea regarding health and safety within his/her company.
The question to be asked is if more than one 16(2) can be appointed and whether or not one 16(2) can appoint another 16(2).
The answer on the first is that more than one 16(2) can be appointed as long as their functions and area of responsibility do not overlap.

The answer to the second question is without a doubt no, the reasons being the following:

1. The Act clearly states in section 16 (1) that the Chief Executive Officer may appoint any person under his control to assist him with his functions and responsibilities under the Act,
2. The legal phrase delegatus delegare non protest applies, meaning that a delegate cannot delegate. The right to delegate a particular functions falls away after it has been delegated once,
3. Lastly, a person can only appoint another if that person is under his/her control and direction.

It is for this reason that a Health and Safety organogram is important to determine whether legal appointments are made within the correct reporting structure.
This being said, the correct appointment structure is not important but rather that the appointments be made in such a manner that will ensure that health and safety are adhered to by properly implementing and maintaining systems to that effect. Regard also has to be given to the fact that health and safety is everyone’s responsibility and not only that of the employer (being management and supervisors). Whether or not a person carries a legal appointment they can be held responsible and ultimately liable for anything related to their working environment and the OHS Act and the requirements set therein.

Source: http://sheqafrica.com/ohs-act-appointments/