Fall protection fail

Another example where the new construction regulations are toothless.
This employee is installing an RF dish on a cellular antenna pole on top of a four storey building.
Note: NO HARDHAT, NO PPE, NO Fall arrest, No sign of a ladder to access the antenna pole.
NO CONTRAVENTION OF CONSTRUCTION REGULATIONS 2014.

This company is not performing "construction work" and hence does not have to comply with the fall protection regulations according to the new improved version.
Site: Parksig, Alexandra Road, Bellville.

Here is a quick assignment to all the Wizzards of OHS:
Let's assume this picture was taken four hours before the person fell from his position and died.
You are the public prosecutor assigned to the case.
What would you argue to obtain a guilty sentence?

 

Very nice assignment.unfortunately I am not a wizard of OHS. I am a safety monkey.

Without going to the books and not knowing all the facts in detail and being the prosecutor I would not assume anything until I had all the hard facts,proof and evidence. Witness statements and any corroborating statement and or information.The client,PC, employer,contractor and sub contractor could be in shirt street here or up the creek without a paddle.As I said I do not have all the facts before me.

For starters.

First I would look at Sec 8 this is obvious any monkey knows that is relevant.
Sec 10 (2) would be a consideration.
Sec 13 in order to establish or ascertain relevance.
Then I sec 14, again this is monkey business.
I would be looking at Sec 21 in order to establish or ascertain relevance.
Sec 24 (1) Circumstances depending ?(How read and understood,Interpretation would be important)
Sec 37 (Be careful of interpretation here)
Sec 40 Enquiring if there were any exemptions and attempt to establish why ? Here this incident occurred prior to the exemption on CR 2014 so CR 2003 would apply,even though you say "This company is not performing "construction work" and hence does not have to comply with the fall protection regulations according to the new improved version" I respect that,But I AM the prosecutor here,am I not? also because A Construction Regulations exemption postpones the whole amendment to August 2014,
GSR 2A maybe a consideration, because only some idiot who is intoxicated or under the influence of prohibited habit forming drugs would get so high.
GSR 6
GSR13A is out the window as there is no ladder ?
CR 1 Construction work (a) (b) If I won that argument I would then be considering the rest of the applicable construction regulations.

There after I would probably also look at environmental regulations,because when the shit hit the fan, and the employee the ground there would be a lot of ground contamination and soil pollution etc.What with the bodily fluids,feces and Bloodborne pathogens are infectious microorganisms in human blood that can cause disease in humans.The area would have to be cordoned off and cleaned up.

All of this just because some sucker,wizard of OHS or safety monkey did not see to it the the employee up there was not working safely.
Aaarghhh F it, I'd probably charge the deceased's assistant as well in terms of sec 14 (a)

Geez all of this and I have hardly looked at the book yet.

Your honour without going into any detail or further research at this stage would you give me a guilty verdict.

If you don't I will scream like girl and hit the door so hard with a cricket bat it will sound like gunshots.

Now do I deserve an Oscar.

 

Court currently in recess.

 

Court still in recess?

Step 1 - does a law apply?
Step 2 - if so, was there a contravention?
Step 3 - if so, what is the liability? Does it refer to strict liability or does it contain "reasonable" compliance? Was achieving compliance reasonable in this case? Does it refer to an ACT or an OMISSION?
Step 4 - Is it punishable in terms of Criminal Law?

Great...now prove the guilt or not.

 

Court still in recess?

Now that's what I call brilliant.

Proof of Guilt there is not Innocence here.And you cant claim ignorance of the law as that is not an excuse.

Let us start with the root cause, poor management and non compliance and safety culture, which we may or may not be able prove by trying to produce documented evidence or proof if it was or in this case was not documented.Oh! here it is proof that it was not documented, because it can not be produced so it cannot be proved that they did it.And if they cant prove they did it then they didn't do it, or did they? and just not document it.Well that is an omission and negligent.

However do you have records of training? NO !! oh!! okay.Did you do any training NO oh!! okay.Well you failed to act ?

Hey you up there on the pole thingy, Het die baas vir jou gese jy moettie daar bo klim sonder n fall protection plan. Nee my broer hy hettie,
Het die baas vir jo gese dat dit is gevaarlik, Nee hy hettie, het die baas vir jou enige trening gegeeg interme vannie Oshact, Nee nooit is jy mal hy se net alie tyd man fok safety daarsie tyd vir die kuck nie.Hy se oekke hy hetie sgeld vir die haarness nie.Hyt gese ek lyk soes n bobejaan so ek moet klouter soos n bobebejaan.

Wiet jy van seksie, ja mneer ekken sksie sy's die girl wat vir my se die baas gee nie n fok om vir my safety. Nie man nis daai seksie nie seksi 14 vannie wet wat se jy moet veranwoordlikheid wat vir jou eie safety nou hoekom het djy nie.Naai man ek wiettie van ditie so jy het die paal geklim en daar loep werk sonder opleiding soneder n risk assesmeent sonder on jou eie veligheid in aanmerking te vat net omdat die baas se vir jou gese hyttie tyd vir safety nie safety maaakie sjeld nie.Dink jy meneer die werkneemer dit was n unsafe act,Ja my edele agbaar ek dink ie so ek wietdit.Dink jy jou werkgewer is werkied indatie hynie jou opgelei het en nagellat het om jou die safety goetes te gee. Ja U edele agbaar ek werk al vyf jaar saametie bass hy't nog nooit vir ons trainig of safety gear gegee hyt n ommisie (Ommission) gedoen.

Edele agbaar as gevolg van die getuienis nou geleiever deur die werknemer dit is duidelik dat die werkgewer het nie article 8 nagekom en n paar ander soos bo aangemeld en die werkgewer het nie van hulle ook nagekom.

So I am forced to ask for a guilty verdict.

Because we heard it from the horses mouth in this case the baboon.Clearly management "Die Baas" does not comply with the act or any of the aforementioned sections thereof.As per his confession reduced to writing and made in the presence of a magistrate in acknowledgement of GUILT and witnessed by an orderly of the court.

Step 1 - a law does apply?
Step 2 - s there was a contravention?
Step 3 - the liability is? and Does it refer to strict liability or does it contain "reasonable" compliance? No it does not contain "reasonable" compliance?
Was achieving compliance reasonable in this case? YES.
Does it refer to an ACT or an OMISSION? Both
Step 4 - Is it punishable in terms of Criminal Law? Yes a financial penalty a reasonable jail term or both a financial penalty and imprisonment.

I hereby suggest an R8000.00 rand penalty, with 6 months imprisonment suspended for 5 years for the employer.
I further hereby suggest an R2750.00 rand penalty, with 8 months imprisonment suspended for 7 years for the employee.

Justice has been done and has seen to be done and will surely act as a deterrent for any other would be or potential corporate offenders who fail to comply with sec 8 of the OHS act.

The next time we will prosecute the safety officer as well for dereliction of duty, should we be able to prove HE|SHE committed a breach of the act or omitted to act.

Case closed.

NEXT CASE PLEASE, as there are thousands of errant employers,employees, organizations, companies and contractors out there, especially within the construction industries blue chip companies. They all need drastic help and their safety personnel need to learn how to bite in order to reduce fatalities accidents incidents and near misses.