Am I responsible when you don’t strike "fair"?

The constitutionally entrenched right to fair labour practices, and the advent of fairness as the adjudicative standard in labour matters, seeks to balance the inherently unequal bargaining position between employer and employee. To a large extent the legislative intention is achieved by curbing the employer's power to exploit workers. However, where trade unions take the law into their own hands and embark on unprotected strike action, are the appointees who are responsible for the health and safety of employees and who were appointed under statute, absolved of liability or left completely exposed by actions out of their control?

The inherent overlap of specialised areas of law is dreaded by most legal professionals. Practically, legal disciplines must be seamlessly applied in the mining industry. By way of a topical example, the Marikana tragedy saw regulatory compliance issues morphing into industrial action, which in turn endangered the health and safety of employees. These areas of law are intertwined, thus specialised knowledge of each piece of the legislative web is required to answer the inevitable question: Who was to blame?

Unprotected strikes may be violent, or they may pose other risks to health and safety. An example of the latter is where a union calls upon its members to embark on an illegal underground sit-in and refuse to return to surface until their demands are met.

How does mine management balance the employer's right, on the one hand, to refuse to accede to unlawful demands with, on the other hand, the over-arching legal duty to protect the health and safety of the employees? Key in avoiding legal liability is understanding the legislative landscape and the underlying hierarchy of considerations in the circumstances.

Section 2 of the Mine Health and Safety Act 29 of 1996 (the MHSA) places a statutory obligation on the "employer" to ensure a healthy and safe mine environment for employees and, in terms of section 5, to maintain this environment. Section 5(2) of the MHSA extends this general duty to cover individuals who are not employees.

In terms of section 102, employer is defined as "owner". For the purposes of this article, owner is defined as holder of the mining authorisation under the MPRDA.

The MHSA allows for the employer to appoint individuals who will be tasked with ensuring the safety of the employees (sections 2A(1) and 4(1)) without derogating from the obligation of the employer as spelled out in the MHSA (commonly referred as the legal appointees).

Section 5(1) of the MHSA provides that "As far as reasonably practicable, every employer must provide and maintain a working environment that is safe and without risk to the health of employees".

Having regard to the plain meaning of this section, it is clear that the employer's obligation is limited to ensuring and maintaining a safe mine environment as long as this is "reasonably practicable".

Taking into consideration the reasonable person test at common law (Kruger v Coetzee 1966 (2) SA 428 (A) at 430)) there must be a reasonable foreseeability of the harm, reasonable precautions to prevent the occurrence of such foreseeable harm and a failure to take reasonable measures or precautions to avoid the harm from arising. Once the employees have taken the decision to act unlawfully and remain underground, placing themselves in an unsafe environment, the harm is certainly foreseeable. However, is the employer obliged to take measures to avoid the harm from arising where such employer has not been party to the decision to act unlawfully?

"Reasonably practicable" is spelled out in section 102 of the MHSA and means being practicable having regard to:

"(a)  the severity and scope of the hazard or risk concerned;
(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;
(c)  the availability and suitability of means to remove or mitigate that hazard or risk; and
(d)  the costs and the benefits of removing or mitigating that hazard or risk."

"Hazard" is defined as a source of or exposure to danger and "risk" means the likelihood that occupational injury or harm to persons will occur in terms of section 102 of the MHSA.

The dangers associated with an unlawful underground sit-in include a possible deterioration of the air quality, exposure to high temperature, high levels of humidity, poor lighting, dehydration and unsanitary conditions, to name a few. The severity of the danger increases depending on the duration spent underground and the type of mine at which the sit-in takes place.

The employer and the legal appointees would want to argue that despite the severity of the risk, the employees flouting the provisions of MHSA exclude their liability because the dangers are not reasonably practicable to avoid. However, in light of the statutory definition of what is reasonably practicable, it would appear that the employer or legal appointees must attempt to mitigate the risk regardless of its unlawful nature.

The employer and the legal appointees remain personally liable for any injuries or fatalities occurring at the mine. The MHSA does not explicitly exclude liability of these individuals where employees act unlawfully. If it is reasonably practicable for the employer and the legal appointees to take action to avoid the harm but they fail to act, this would be an offence in terms of section 91, and would be liable to a fine or imprisonment.

The employees would not be completely blameless in these circumstances. The MHSA obliges employees to take reasonable care to protect their own health and safety, and to comply with prescribed health and safety measures in sections 22(1)(a) and (f). Therefore, employees who act knowingly, endangering their lives and ignoring the regulations which prescribe the maximum duration that employees may be underground, amounts to a failure to comply with the provisions of the MHSA. This is also an offence punishable by a fine or imprisonment in terms of the Act. Employers are, however, cautioned against the misplaced reliance on the assumption that the employees’ unlawful act absolves the employer of its obligations under the MHSA.

While the MHSA presents its own set of complexities in balancing employee and employer obligations, employers too quickly assume that failure to comply with the procedures envisaged for protected strike action automatically mean that the actions of the employees or trade union, as the case may be, are unlawful and are deserving of dismissal. This is incorrect. Considering the myriad of legal considerations in respect of dismissal of unprotected strikers, employers should not impose the sanction of dismissal without Hvin regard to the seriousness of the contravention of the Labour Relations Act 66 of 1995 (the LRA), attempts made by the employees to comply with the LRA and whether or not the strike was in response to unjustified conduct by the employer (Item 6(1) of the Code of Good Practice: Dismissal).

Despite the employees acting outside of the procedural scope of the LRA, the inconsistency of the principles espoused by the Labour Court on what constitutes fairness of unprotected strike dismissals poses a danger to employers who impose the sanction of dismissal. In the present circumstances, hundreds of miners could be involved in an underground sit-in; a mistake on the fairness of dismissals could prove exceptionally costly and embarrassing if reinstatement is granted to the employees.

Employers who attempt to dismiss miners who are still on the premises must also be cognisant of the fact that their duty to maintain a safe working environment in terms of the MHSA extends beyond the realm of the employment relationship. Thus, in terms of section (5)2 of the MHSA, any hasty dismissals will not eliminate liability for harm that comes to the dismissed employees.

The legislative landscape applicable to this issue illustrates a clear intention to protect employees who are in an inherently vulnerable position. This is demonstrated by the provisions of both the MHSA and the LRA, which require a fact-based determination to assess what is reasonably practicable and what is fair in the circumstances. Employers are cautioned against disregarding their health and safety obligations based on reliance that the employees are acting unlawfully.

In determining the hierarchy of legal considerations at play in these circumstances, health and safety considerations should be of paramount importance all the while remaining cognisant of the employer's rights in labour law.

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