In the recent judgment of
Truworths Limited v The Chief Inspector: Occupational Health and Safety, Department of Employment and Labour, the Labour Court provided critical guidance on what constitutes 'reasonably practicable' under the Occupational Health and Safety Act 85 of 1993 (OHSA). The judgment underscores the importance of a
de novo hearing in appeals against the chief inspector's decisions, allowing for a comprehensive re-evaluation of cases to ensure fairness and justice. It also emphasised the necessity for inspectors to carry and present certificates of appointment as mandated by section 28(2) of OHSA.
What constitutes 'reasonably practicable' under OHSA
The Labour Court considered 'reasonably practicable' as a benchmark for employers to ensure the safety and health of their employees in terms of OHSA. The court emphasised that while inspectors under OHSA have the power to assess whether an employer complies with the Facilities Regulation (FR), they cannot dictate how a workplace should be structured based on their own view of a more suitable setup. Instead, inspectors must evaluate whether the employer's existing workplace layout meets the objectives of the FR, considering what is reasonably practicable in the specific context of that workplace.
In terms of section 1 of OHSA, 'reasonably practicable' refers to the measures that an employer can take to ensure the health and safety of their employees, considering the severity of potential harm, knowledge of the risk, and the availability and suitability of ways to mitigate it.
The consideration of what is 'reasonably practicable' runs throughout OHSA and is not limited to section 8, which was the focus of this case. For example, this requirement of 'reasonably practicable' is embedded in each of the general duties of employers towards their employees under section 8 of OHSA. The Labour Court stated that determining what is reasonably practicable requires 'a balanced assessment of the interests of both employer and employee.' This means that ensuring employee health and safety is not about finding the best possible solution but rather about determining whether the employer's existing measures feasibly achieve the required health and safety standards. The court held that this requires an objective factual inquiry that considers costs, resources, capability, and alternative means, tailored to the specific circumstances of each case.
The threshold for what is considered 'reasonably practicable' is not a fixed standard but must be assessed on a case-by-case basis, considering the factors listed in section 1. To meet this threshold, employers must: identify potential workplace hazards; implement appropriate measures to mitigate identified risks; and ensure employees are aware of these hazard, and understand how they can be mitigated. Understanding what constitutes “reasonably practicable" is fundamental for employers to comply with OHSA.
Labour Court guidance on appeals against decisions of the chief inspector
The judgment underscored that an appeal against a decision of the chief inspector under section 35(3) of OHSA is classified as a 'wide appeal,' meaning the Labour Court is empowered to conduct a complete re-hearing of the matter. The inspectorate under OHSA has broad powers that can significantly impact employers, including potential criminal prosecution. However, there is no prescribed process for an appeal to the chief inspector, and section 35(1) of OHSA does not require the chief inspector to provide reasons for a decision. To ensure fairness, lawfulness, and justice, the Labour Court monitors and supervises the exercise of these powers by re-hearing the entire cause of complaint,
de novo. A
de novo hearing means that the court hears the case afresh, without being bound by the chief inspector's previous decision. This allows the court to consider all aspects of the case, including new evidence and arguments in support of the grounds of appeal.
Section 28(2) OHSA: The importance of inspector certificates
The court emphasised the peremptory nature of section 28(2) of OHSA, which mandates that inspectors must be furnished with a certificate signed by or on behalf of the Minister, confirming their designation and outlining any limitations to their functions. The court held that this requirement is not a mere administrative formality but serves as essential proof of the inspector's lawful authority, ensuring that only authorised personnel carry out inspections. In terms of section 28(3) of OHSA, employers have the right to demand to see the inspector's certificate during an inspection. Without this certification, any inspection or enforcement action is deemed irregular and unauthorised. In this case, the inspectors lacked valid certificates as required by section 28(2) of OHSA, rendering their inspections and the resulting contravention notices invalid.
This judgment clarifies the definition and application of 'reasonably practicable', emphasising the need for a balanced approach that considers the interests of both employees and employers in determining compliance with OHSA.
