Keeping employees safe from threats of criminal misconduct

In the recent judgment of the Labour Court in the case of City of Johannesburg v Swanepoel N.O and Others (JR2316/12) [2016] ZALCJHB 80 the court provided a measure of clarity on the extent of an employer’s obligation to provide a safe working environment for employees as provided for by the Occupational Health and Safety Act, No 85 of 1993 (OHSA).

Section 8 of OHSA provides that all employers have a duty to provide and maintain, as far as reasonably practicable, a safe working environment which is free of risk to the health of their employees. Additionally, according to s9 of the same Act, employers are obliged to conduct their activities in such a manner as to reasonably ensure that these activities do not expose persons other than their employees, who are directly affected by the employers’ activities, to any hazards to their health and safety.

The court in the above judgment was faced with the determination of the justifiability of the dismissal of the Third Respondent (employee) by the Applicant (employer) as a result of the refusal of the employee to be transferred to a different Region. The employer proposed the transfer of the employee on grounds of his and his family’s protection and safety.

The employee had been working on a delayed ongoing project aimed at the improvement and development of the Alexandra Township (project), however, over the years since the inception of the project, the community in Alexandra, had become disgruntled as a result of a lack of progress. This dissatisfaction led to a demand for the removal of the employee from the project. Prior to this, there had already occurred previous demonstrations, an alleged ‘arson attempt’ directed at the home of an official working with the employee, and a sit-in at the office of the Mayor. A further contributor to the tensions was allegedly attributed to the employee’s investigation into allegations of fraud and corruption in the project which led to him receiving death threats.

The tension between the community members and the employee, and the consequent concerns for the safety of the employee and his family, led the employer to seek to transfer the employee to a different region based on the same terms and conditions of employment. The aim of the transfer was to prevent any harm to the employee and his family and to allow emotions to ‘calm’ in order to properly investigate the community’s grievances in the absence of the employee.

The employee’s refusal to transfer subsequently resulted in his dismissal for gross insubordination for his failure to comply with a lawful and reasonable instruction of his employer.

The Labour Court, in deciding that the dismissal had indeed been fair, held that the actions of the employer in requesting the transfer of the employee had been a reasonable move in the circumstances in compliance with its duties in terms of OHSA. Thus, the refusal of the employee to abide by the instructed transfer constituted gross insubordination and had prevented the employer from complying with its statutory obligations. Furthermore, the Labour Court found that:

“[t]he duty to provide a safe working environment rests upon the employer under both common law and statute. It is the working environment that must be safe and not just the actual place where work is rendered.”

The court’s reasoning from this judgment provides that, should the particular circumstances of a case so require, an employer, in accordance with OHSA and the common law, will have a duty to take further steps than expected in the ordinary course in order to prevent harm to its employees. The obligation may be extended to situations where employees may become vulnerable to criminal misconduct should the circumstances call for it.

Another example of where this obligation may be extended, finds itself in the workplace where unprotected, or even protected industrial action has turned violent. The Labour Court is often called upon to interdict and prevent unlawful and violent conduct during the course of strike action, where employees who do not wish to partake in the strike action are intimidated and in some instances violently assaulted for their ‘lack of solidarity’. Employers often rely on the South African Police Service (SAPS) to ensure that no harm befalls its working employees and contractors, but does this reliance on SAPS absolve those employers from taking further precautionary measures?

The question begs whether criminal misconduct is ‘foreseeable’ and whether the employer is in a position to take precautionary measures in order to reasonably safeguard its employees who did not wish to embark on industrial action.

Needless to say, every situation would be determined on its own merits and circumstances.

Employers should be aware that the specific health and safety standards prescribed by OHSA constitute a minimum threshold and situations may be encountered when additional action should be taken by the employer in order to ensure that a safe working environment is maintained.

Written by Michael Yeates and Emilia Pabian