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We are masters of our fate

February 2015

In the ultimate verse of the famous poem Invictus (Latin for “unconquered”), first published in 1888, the poet William Ernest Henley wrote:

“It matters not how strait the gate,
How charged with punishment the scroll,
I am the master of my fate,
I am the captain of my soul.”

Almost 150 years later, these words have almost mystical inspirational power.  It means different things to many but, at its heart, the poem implores us all to take charge of our destiny, our actions and our thoughts so that we may forge a path of success.

Mining occupational health and safety is governed and regulated by our common law and the Mine Health and Safety Act 29 of 1996 (MHSA).  The MHSA sets the minimum legal standard of conduct for employers and employees alike, with statutory consequences, which includes criminal prosecution, befalling those who fall short in meeting their obligations.

Although much is written and debated about the employer’s obligation to ensure a working environment free of hazards to health and safety, the responsibilities of individual employees are often overlooked.  There are two sides to the safety coin – the employer – and the employee.  Neither one can on its own ensure a working environment free of risk.

Once the employer has complied with its obligations of identifying the hazards in the workplace, assessing the risks associated with those hazards and eliminating or mitigating the risks where possible, the employer is left to design and implement policies, procedures and standards to control the residual risks to health and safety.  The employer must then train its employees so that they understand the risks and can implement and comply with the employer’s policies, procedures and standards.

Although this is admittedly an over-simplification of the employer’s obligations, it demonstrates that the employer must first establish the framework within which the workplace will operate safely, whereafter the employee is given a statutory duty. Section 22 of the MHSA, inter alia, provides that:

 “Every employee at a mine, while at that mine, must –
(a) take reasonable care to protect their own health and safety;
(b) take reasonable care to protect the health and safety of other persons who may be affected by any act or omission of that employee”
 …; and
(f) comply with prescribed health and safety measures.”

The concept of “reasonable care” as used in section 22 must be interpreted within the context of the common law duty of care and the principles of the reasonable person test (the bonus paterfamilias). 

As a starting point, it compels an employee not to act negligently. To determine whether conduct was negligent or not, the foreseeablility test is usually applied.  The test as authoritatively formulated in Kruger v Coetzee (1966 2 SA 428 (A) at 430), embodies three elements:

  • reasonable forseeablility of the harm; 
  • reasonable precautions to prevent the occurrence of such foreseeable harm; and 
  • failure to take the reasonable precautions. 

The steps and precautionary measures that an employee must take in particular circumstances, establish both the actual standard of care required and the employee’s non-compliance with the requisite standard of care. 

The foreseeablility test, therefore, has two applications: first, it determines the actual standard of care that an employee must meet, and second, it determines whether or not the employee complied with that standard.

The reasonable person test is used to determine whether an employee would have foreseen the possibility of harm to another and whether he or she would have taken steps to prevent that harm in the circumstances.  This mystical concept denotes a person exercising those qualities that society requires of its members for the protection of their own interests.  It is a moving target.  It adapts with the needs and demands of our society.  What was good 20 years ago, may no longer be good now.  Attributes such as knowledge, experience, training, intelligence, concentration and perception, all form part of the qualities assessed in determining the conduct of the reasonable person in particular circumstances.

Having said all this, it is clear that it is the intention of section 22 of the MHSA is to place on every mining employee the responsibility and compunction to act reasonably.  Employees cannot hide behind the employer’s obligations; they too have the obligation to ensure that their conduct does not cause harm to themselves or others.

What should happen to employees who fail to meet this standard of care? 

Where an employee’s conduct results in serious injury or death, the Department of Mineral Resources (DMR) and its Inspectors of Mines (IoMs) are appointed to investigate and, where appropriate, to recommend criminal prosecution.  The DMR may also invoke measures short of prosecution, such as to revoke the employee’s certificate of competency.

However, the DMR and the IoMs do not have the power to dictate to the employer how to regulate its employment relationship with its employees.  Employers have the prerogative to take appropriate disciplinary measures where employees fail to comply with its policies, procedures or standards. 

Bearing in mind that the primary purpose of workplace discipline is to correct behaviour, rather than to punish, it is incumbent upon employers to take disciplinary steps where employees fail to meet the minimum standards of safety.  Failure to do so will inevitably lead to complaints of inconsistent conduct on the part of the employer or, even worse, may be seen as condoning errant behaviour.

Our courts have repeatedly endorsed discipline of employees for failing to meet minimum standards of safety.  In the matter of National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others [2009] ZALC 125 (JR1239/09), the Labour Court upheld an arbitration award of the CCMA in which the dismissal of an employee for failing to comply with safety standards was held to have been fair.  The employee had worked on a conveyor belt without first locking it out (to ensure that it was de-energised).  After the CCMA held the dismissal to have been fair, the union sought to review and set aside the award.  The Labour Court, endorsing the award held in paragraph 17 of the judgment that:

“In applying the law to the facts the commissioner found that the employee had contravened an important safety rule, in that he failed to comply with the lockout procedure whilst doing work on the re-feed conveyor belt... He found in this regard that that conduct constituted a breach of the provisions of section 22 including those of regulation of [the] MHSA. In as far as knowledge of the rule was concerned the commissioner found that the employee was aware that running a conveyor belt without applying the lockout procedures could lead to serious accidents which could cause death or serious injuries to other people. Having come to this conclusion the commissioner then proceeded to evaluate as to whether the sanction of dismissal was appropriate. In evaluating the appropriateness of the sanction the commissioner took into account the disciplinary code of the respondent which provides that gross negligence relating to a potential adverse situation which for instance may involve the safety of other employees warrant summary dismissal.”

In a regulatory environment where the focus is often on the employer’s conduct, and its failure to meet minimum standards of safety, it is easy to overlook the importance of the employee’s obligations in this regard. Employees must be made to understand that they are responsible for their own conduct and a failure to meet the statutory duty of care may result in discipline, or at worst, prosecution. 

Both employers and the DMR have the duty to send this message loud and clear in pursuit of the improvement of health and safety in the mining industry.

The team

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