Brief facts of the case

The case arose from inspections in loco conducted by certain inspectors of the Department of Employment and Labour at two of Truworths’ retail stores. Following these inspections, contravention notices were issued to Truworths, indicating non-compliance with section 8(b) of the Facilities Regulations. In the notices, the inspectors found that Truworths was in contravention of these regulations because of a lack of seats at the cash desks so that cashiers could sit down while doing their work. The inspectors directed Truworths to provide seats with backrests at the cash desk in one instance and to provide for cashiers in the other. Truworths appealed these notices to the Chief Inspector, arguing that placing seats behind the cash desks was not a reasonably practicable measure, and could cause a risk if positioned behind the cashier counters, and that seating facilities were available elsewhere at the workplace. The Chief Inspector dismissed both appeals, stating that Truworths had not proven that it was not reasonably practicable to provide such seating at the cashiers’ stations and that the risk assessment did not address the hazard of employees standing for long periods. Consequently, Truworths approached to the Labour Court in terms of section 35(3) of the OHSA.

Nature of an appeal in terms of section 35(3) of the OHSA

The court held that such an appeal is an appeal in the “wide sense”, meaning the court had the power to reconsider the entire matter de novo rather than being restricted to reviewing the Chief Inspector’s decision for correctness. The court relied on legal precedent, distinguishing between different types of appeals – specifically, a narrow appeal, which only assesses whether the original decision was right or wrong based on existing evidence, and a wide appeal, which allows for a full rehearing with the opportunity to present new evidence and arguments. The court concluded that section 35(3) of the OHSA clearly grants it the power to substitute its own decision, confirming that this appeal fell within the wide appeal category.

The court justified this broad approach by emphasising its role in supervising and monitoring the enforcement powers of the OHSA inspectorate. Given that inspectors have extensive authority to issue directives and impose compliance measures, their decisions must be subject to thorough judicial scrutiny. A key implication of this classification was that Truworths was allowed to introduce a new argument on appeal, namely that the inspectors who issued the contravention notices lacked the required certification under the OHSA.

The Labour Court’s approach to certification under section 28 of the OHSA

A central ground of Truworths’ appeal concerned whether the inspectors who issued the contravention notices had been properly designated and certificated in terms of sections 28(1) and (2) of the OHSA. The Labour Court emphasised that the respondents had failed to produce the certificates of designation for the inspectors, despite undertaking to do so. The court found that the identity cards provided by the respondents, which indicated their appointment as inspectors under the Basic Conditions of Employment Act 75 of 1997 (BCEA), were not issued under the OHSA and hence were irrelevant. In the absence of these certificates issued in terms of the OHSA and any reasonable explanation for their absence, the court drew the inference that the inspectors were not acting lawfully.

The court firmly held that the requirement of a certificate for inspectors is peremptory and not a mere administrative formality. It reasoned that the certificate serves as conclusive proof of proper designation and establishes the inspector’s locus standi to exercise the wide-ranging powers granted under sections 29 and 30 of the OHSA. The court highlighted that affected persons have the right under section 28(3) to demand production of this certificate. Without a valid certificate, the court concluded that the inspections conducted by the inspectors were invalid and unauthorised, rendering the subsequent contravention notices equally invalid and of no force and effect. The Labour Court underscored the importance of adhering to statutory requirements, citing the principle that the legislature does not enact superfluous statutory provisions. On this ground alone, the court ruled in favour of Truworths and set aside the contravention notices.

The Labour Court’s approach to what is considered a “reasonably practicable” standard under the OHSA

The Labour Court also considered the concept of “reasonably practicable” as defined in section 1 of the OHSA and its application to section 8 of the Facilities Regulations. In this instance, the court emphasised that determining what is “reasonably practicable” involves a balanced assessment of the interests of both the employer and employee. While the primary focus is on employee health and safety, the employer’s operational constraints, costs and resources, and the feasibility of alternative measures, must also be considered. The court held that the central test was whether what has been “feasibly considered”, can be said to ensure the health and safety of the employees when regard is had to what has been implemented by the employer. The court found that the inspectors had misconstrued section 8(b) of the Facilities Regulations by dictating precisely where seating had to be provided (behind the cash desks), without properly considering whether this was reasonably practicable for Truworths. The inspectors also failed to take into account that employees had opportunities to rest by sitting elsewhere, when a break was scheduled, and assess whether seating had been provided in such other areas.

The Labour Court criticised the Chief Inspector for placing the onus on Truworths to prove that it was not reasonably practicable to provide seating at the cash desks. The court clarified that the obligation on the employer is to implement measures that are reasonably practicable to provide seating for employees to rest, which Truworths had indicated it had been doing by providing seating facilities elsewhere in the store. Furthermore, the Chief Inspector’s reliance on the lack of a specific hazard assessment for standing at the cash desk was deemed irrelevant as it was not the basis of the contravention notices. The court concluded that the inspectors had made findings based on their personal preferences rather than a proper application of the “reasonably practicable” standard.

Key takeaways

Employers should be aware that the Labour Court has affirmed the peremptory nature of section 28(2) of the OHSA, requiring inspectors to be furnished with a certificate of designation signed by or on behalf of the Minister. Inspections conducted by uncertified individuals would be deemed invalid and unauthor ised, potentially leading to the setting aside of any contravention notice. Employers have the right under section 28(3) of the OHSA to demand to see an inspector’s certificate.

Compliance with the OHSA is not a one-size-fits-all determination. Inspectors must assess whether an employer’s existing measures effectively mitigate risks, taking into account feasibility, cost and operational requirements.

Inspectors must establish a failure to comply with any relevant regulations before requiring an employer to justify its practices. Employers should challenge enforcement steps actions where inspectors incorrectly shift the burden of proof to them.