The right to refuse to work under unsafe conditions

Vrydag, Maart 11th, 2011

1.            People could be seen as one of the most important assets in an organisation. As human beings we are all entitled to a safe and healthy working environment. Legislation in the form of the Mine Health and Safety Act, Act No. 29 of 1996 (“the Act”), was written and passed by parliament to address this matter.  Some of the main objectives of this Act are to;

1.1      promote a culture of health and safety;

1.2      provide for the enforcement of health and safety measures;

1.3      regulate employers’ and employees’ duties to identify hazards and eliminate, control and minimise the risk to health and safety; and

1.4      entrench the right to refuse to work in dangerous conditions.

2.            According to the Act, the employer have an overall duty, as far as is reasonably practicable, to provide and maintain a working environment that is safe and without risk to the health of employees.  [Section 5(1)]

3.            Although the Act largely places the duty for health and safety on the shoulders of employers (management), employees are also bound to comply with certain legal prescriptions.  Section 22 also places duties and responsibilities on employees at mines, such as amongst others to;

3.1      take reasonable care to protect their own health and safety;

3.2      take reasonable care to protect the health and safety of other persons who may be affected by any act or omission of that employee;

3.3       report promptly to their immediate supervisor any situation which the employee believes presents a risk to the health or safety of that employee or any other person, and with which the employee cannot properly deal; and

3.4      co-operate with any person to permit compliance with the duties and responsibilities placed on that person in terms of this Act.

4.            An employer and employee must also give assistance and information to an Inspector from the Department of Mineral Resources, when required.  (Section 52.)

5.            The Mine Health and Safety Act has a very specific provision that employees may refuse to work under unsafe conditions.  Section 23 of the Act determines that an employee has the right to leave any working place whenever circumstances arise at that working place which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee or the health and safety representative responsible for that working place directs that employee to leave that working place.

6.            Furthermore, in view of the duty of the employer not to allow and permit employees to perform unsafe work, of the duty of employees to take responsibility for their own safety and the constitutional rights to life, bodily integrity and a safe environment, it is apparent that all employees inherently have the right refuse to work under unsafe conditions.

7.            In this regard, note must be had of section 83 of the Act that determines that no person may discriminate against any employee for exercising any of his/her rights in terms of this Act.  Take note, that for the purposes of this section, “discriminate” means to dismiss an employee or to engage in any other conduct which has the effect of prejudicing or disadvantaging the employee, or which prejudices or disadvantages the employee relative to other employees.

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