Dear OHS Practitioners

I have been racking my brain wondering what earth-shattering topic would be appropriate as my first newsletter to you. And then it dawned on me. As OHS practitioners you all will undoubtedly be involved in incident investigation at the workplace and most probably be responsible for compiling an internal report, the findings of which will be reflected on the Annexure 1 document. I need not tell you that Annexure 1 is a rather bland document which doesn’t reveal too much. From a potential incrimination perspective, it is only really points 4 (short description of incident), 5 (suspected cause of incident) and 6 (recommended steps to prevent a recurrence) of section B that could come to haunt you should it be incorrectly or hastily completed.

Although Annexure 1 need only be kept open for inspection by an inspector, it does form part of the record to the Directorate of Public Prosecutions in the event of a reportable incident ending up in court. If this does happen and, after years of waiting for a matter to come to trial, an employer opts for a defense which is inconsistent with the findings as stated on the Annexure 1 , this inconsistency may be exploited by a prosecutor to detriment of the employer. So a word of caution there.

Annexure 1 is, however, usually supplemented by a more comprehensive internal investigation report which often contains information that employers may not wish to make public for fear of prosecution or even a civil action for damages. This comprehensive internal report, although not a legal requirement, is the only real documented means of probing an incident and sharing the findings amongst interested parties. In the past it was normally not made available to inspectors since seasoned inspectors preferred to gather evidence themselves, usually via oral evidence produced at formal inquiries. In fact they often were dismissive of such reports most probably because they were considered as biased. Being an internal report designed to find the root cause(s) of an incident and steps to prevent a recurrence, it normally does not pull any punches. Blame may be apportioned and that is fine. As long as it is remembered that employers, albeit juristic or natural persons, can be held vicariously liable because blame has been apportioned. (See section 37 of the OHS Act and section 332(5) of the Criminal Procedure Act). A company and individuals managers become liable to prosecution through the negligent acts or omissions of its employees. You cannot, however, be compelled to make this information available to an inspector as it is incriminatory and you enjoy protection as against incrimination.  The right against self incrimination may be waived or immunity offered to persons who are then compelled to answer questions which may be incriminatory. See section 63 of the Mine Health & Safety Act). This provision will most probably find its way into the new National OHS Act which will comprise a merger of the OHS and MHS Acts. So another word of caution. Persons could be compelled to ‘sing like canaries’!

Another problem with incriminating reports lying around in that they be discovered by someone utilising the Promotion of Access to Information Act to gather evidence for a civil claim against the employer. Prevent this by involving a legal advisor or representative in the internal investigation thus making the document legally privileged and protected.

Things however changed after the Department of Labour’s controversial transformation exercise which resulted in the flight of experienced OHS specialised inspectors and the dawn of the current malaise. Today most inspectors are inexperienced labour law generalists and this has necessitated a more pro-active approach by employers as regards section 31 investigations or section 32 formal inquiries, lest an incoherent report be sent through to the Directorate of Public Prosecutions by inspectors. A prosecutor who cannot determine the merits of a case from an inspector’s report may opt to charge an employer and use the trial to gauge the strength of the States case. 

Today employers invariably prepare a comprehensive report for the benefit of the inspector. Although it is common cause that this report will be ‘sanitised’ of any unnecessary incriminatory evidence, it does find its way to the prosecutors who will take cognisance of it and ideally be influenced by it. Its impact may, however, be diluted after employers are subjected to cross-examination or evidence is led from those with opposing views. But it is still an important element in the ‘Defence Arsenal’. It must be remembered that prosecutors have only documents before them when deciding the merits of a case and that there are certain ‘buzz words’ that students of law are programmed to react upon. The words ‘reasonably unforeseeable’ come to mind. Use them generously since most OHS crimes are founded in negligence and the test for negligence being whether an incident was, objectively speaking, reasonably foreseeable or not. Of late the Department of Labour has been requesting employer reports after receiving notification of an incident, probably to prioritise it vis-à-vis its investigation. It may also be used to determine the complexity of the matter and thus the caliber of inspector who will preside.

I have always recommended that you obtain legal representation from the outset in the event of a reportable incident. It is vital to keep an incident investigation legally focused from the beginning until a report lands on a prosecutor’s desk. And that brings me to another important document that has evolved over time. We call it the “Employer’s Submission’ and it is moulded along the lines of the Heads of Argument that we use in court. Essentially it is a point by point summary of the employer’s case with reference to various provisions of OHS legislation. It is compiled solely for transmission to the public prosecutor although an inspector is under no obligation to send it through. It can, however, be communicated directly to the prosecutor at any stage even after a summons has been issued against an employer. 

Here is an example of an Employers Submission Report that I recently did for a client. Identities have been changed to protect the innocent.

EMPLOYER SUBMISSION REGARDING INCIDENT TO Mr. ABC.

1. CDF Limited was the client as defined in the Construction Regulation 1.

EFG (Pty) Ltd was the Contractor as defined in the Construction Regulation 1.

2. Construction Work as defined in Construction Regulation 1 was being performed in that an old 3,5 meter wooden cross-arm on a H Pole Structure was being replaced with a new pole.

3. Notification of Construction Work was made to the Department of Labour as prescribed in Construction Regulation 3.

4. The Department of Labour was informed of the incident as per section 24 of the OHS Act.

5. An Internal Investigation commenced within seven days as per General Administrative Regulation 9 and its findings are as per Annexure 1.

6. All obligatory legal appointments were made as per the OHS Act in general and the Construction Regulations in particular.

7. A written Risk Assessment was compiled by a competent person appointed in writing as per Construction Regulation 7 read with section 8 of the OHS Act.

8. A written Fall Protection Plan was compiled by a competent person appointed in writing as per Construction Regulation 8.

9. CDF (Pty) Ltd stringently complied with all contractual safety requirements imposed by the client.

10. CDF (Pty) Ltd is routinely subjected to safety audits by the client as per Construction Regulation 4(1)(d) and has been praised for its level of safety compliance by the client.

11. The deceased  Mr. ABC was an employee of CDF (Pty) Ltd.

12. He died after an old pole which was being replaced collapsed with him attached to it.

13. The deceased was trained into the Risk Assessment and Fall Protection Plan.

14. The deceased was a competent linesman trained into the safe working procedures pertaining to work in elevated positions in particular:

(ii) He received induction and on-going training pertaining to the safe manner of replacing cross-arms at elevated positions.

(ii) He was trained into the safe use of Personal Protective Equipment (Fall Prevention Equipment) particularly the manner in which safety belts are attached to prevent inadvertent falling while replacing cross-arms on poles.

15. He failed to attach his safety belt as per his training and the Fall Protection Plan to the new pole.

16. The old pole was under planted in 1967 by the client at a depth of 1,2 meters instead of the standard 2 meters. 

17. The under planting was not communicated to CDF (Pty) Ltd by the client and could also not be visually or otherwise be detected prior to the incident. CDF (Pty) Ltd was therefore unaware of the deviation in standard depth.

18. Despite the under planting of the old pole the deceased would not have fallen with the pole if his safety belt was correctly attached as per the Fall Protection Plan to the new cross-arm instead of the old pole.

19. The old pole on to which the deceased had attached himself would not have collapsed if it was planted at the standard depth.

20. The Fall Protection Plan requires linesmen to check whether the pole being climbed is stable. Either the deceased failed to do this or the pole did not wobble while he climbed it.

21. Proper supervision as envisaged by section 8(2)(i) of the OHS Act was exercised at all times on the day of the incident.

22. The failure of the deceased to properly secure his safety belt as per the Fall Protection Plan could not reasonably be detected by supervisors since the positioning of the safety belts is continuously changed and supervisors alternate between structures during operations. The height at which persons work also impair detection.

23. CDF (Pty) Ltd has an excellent safety record and has received numerous Merit Awards from the Compensation Commissioner in the past. It’s safety performance has also been praised by the client.

regards

Raynard