Section 16. Chief executive officer charged with certain duties Part 3

Section 14. General duties of employees at work.

Every employee shall at work -

(a) take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;

(b) as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;

(c) carry out any lawful order given to him and obey the health and safety rules and procedures laid down by his employer or by anyone authorised thereto by his employer, in the interest of health or safety;
(d) if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer; and

(e) if he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.

Recently I have been inundated with queries regarding the criminal liability impact of acceding to an appointment in terms of section 16(2) of the OHS Act. Many feel that it creates potential personal criminal liability which did not exist before. I have never been a disciple of the theory that an appointment creates personal OHS liability. I believe that if you accept a certain managerial position within a company, you are de facto a ‘human’ employer with the possibility of personal OHS criminal liability if something goes wrong in your area of jurisdiction. This should ideally be reflected in letters of appointment. An appointment merely formalises this situation or makes it de jure. It creates a structure which is ultimately headed by the CEO or section 16(1) individual. This structure is designed to ensure you have the necessary OHS support from above. Everyone has potential personal OHS criminal liability – albeit it workers (section 14) or the ‘human employers (mostly section 8).

Lastly. I have recently locked horns with a few DoL inspectors who fail to understand that there could be a difference between a CEO (corporate title) and CEO as per definition in the OHS Act. A CEO, in relation to a body corporate or an enterprise conducted by the State, is defined in section 1 of the Act as meaning the person who is responsible for the overall management and control of the business of such body corporate or enterprise. The definition links a CEO to a body corporate ((Pty) LTD / Limited / CC) which means that a CEO / section 16(1) person can be found in subsidiary corporate bodies – not business units that are not (Pty) Ltd / Limited / CCs – and there is no need to look to holding companies for the section 16(1) person. Recently an inspector demanded that the CEO attend a section 31 Investigation for a subsidiary company in Port Elizabeth. The person who was in control of the business of the subsidiary corporate body held the (corporate) title of Operations Manager. He is the CEO as per definition in the Act.

Raynard Looch

http://klasslooch.com.www77.jnb2.host-h.net/Newsletters/The-CEO-Team/

 

I do not quite agree with Adv. Looch, on the last paragraph, but only in as far as the changes in the Companies Act is concerned.
When the OHS Act was written (1992) the previous Companies Act was still in place. This Act did not allow for a (Pty)LTD to have only one director. If one look at a body corporate or "corporation" derived from the latin word "corpus" or body, it is intended that a body corporate was a body of people. Not sure if it makes sense, but it was more than one person. The new (PTY)LTD regime can be only one person. But, it will never be a body corporate of one. Besides, if there is only one person in charge of the company, who else do one have to prosecute? And that is why the "body corporate" part came in. The last thing you want is for two or more directors playing ping pong with their culpability. Hence Section 16.

Back to the definition of CEO in the OHS Act.
Safety practitioners and the DOL for that matter cannot understand (or refuses to) that a CEO only exist where there is a body corporate.
I have seen this so so many times where a sole director (16,1) appoints himself as the 16,2, the 8,2 and the Construction manager, just to satisfy the damn safety file ticksheet.
Read the comments in Prof. Smallwood's research recently posted. Then I rest my case. Told you so! 4 years ago.

As for the Corporate environment, companies have complex structures, often confusing even their own CEO's. Here, Adv. Looch is correct. When we work in the Criminal Law environment, the legal persona (company) that did the crime, must do the time. It does not matter how high up in the tree, and how far removed the "CEO" by business card designation, sits. Section 332 of the Criminal Procedures Act should make this quite understandable.
Why the DOL get confused, (among the million other reasons) is that under Civil Law, a parent or holding company can be held accountable for damages if the "guilty" company can not pay up. This is almost like a Dad paying for the damages caused by his delinquent son.

I recall back in the day, when each prosecution we submitted to the AG, was accompanied with a letter from the Registrar of Companies furnishing the names of the directors of the company in question. How things have become warped, beats me.

Enjoy!