Dear OHS Practitioners

I assume, from your designations, that whenever a breach of safety occurs at the workplace, you would be somehow involved. I would further assume, in many instances, that you would initiate or recommend to your employer the remedial steps since you are legally obliged in terms of section 8(2)(h) to enforce the precautionary measures that you have in place. Many of you will recall the repealed Machinery & Occupational Safety (MOS) Act did contain a provision in General Administrative Regulation 4 requiring employers to enforce discipline in the interests of health and safety. While the current OHS Act does not use this terminology, disciplinary action is routinely used as a way of enforcing precautionary measures.

As most of you know all OHS criminal matters are heard either in the District or Regional Courts but usually the latter. These courts unfortunately do not generate Law Reports – unlike other countries – and we are normally at a loss to know what is happening in the OHS criminal law arena. Fortunately labour relations issues and in particular cases involving safety are often reported. So I thought that I would periodically share some of these  matters with you.

My personal experience is also often that, after a risk assessment has been made and the required precautionary measures introduced, employers fail to stringently adhere to these procedures by allowing or condoning deviations. These deviations may not necessarily be less safe but invariably are. This matter will serve to illustrate my point.

In SACWU obo Moholi & Gojo / AEL [2008] (NBC) a machine operator was charged in a disciplinary hearing for failing to follow safety instruction on 24 October 2006. Another machine operator was charged was charged for a similar offence. This followed an explosion on 24 October 2006 in which one employee sustained severe injuries to the extent that his arm had to be amputated.

A total of seven employees were manning an area where the safety standards were compromised. The manufacturing process is characterised by the spillage of powder. The spillage may, because of friction, lead to an explosion. It is a safety requirement that there should be wet mats at all stages of the process to damp the spillage as an explosive deterrent. An added safety measure is that after every two runs, the operators must stop the process to clean the rails.

The machine operators were trained in the safety regulations and were competent operators.

On the relevant day they were working at an unsafe speed and without adhering to safety standards. The investigations indicated that they failed to stop the machines for cleaning purposes but instead carried on running production.

The tipper operator disregarded the rule against mixing spilled powder with fresh powder aimed at preventing impact and friction which had the potential of causing an explosion. This was a serious safety breach that endangered his life and other employees.

He admitted during the investigation that he failed to decant the spillage as contemplated in the safety standard and that he was in a position of authority to the extent that he was authorised to call a halt on the proceedings where breach of safety regulation existed.

An Internal Investigations was followed by the disciplinary hearings against the two machine operators.

The cleaning standard was set out in documents which were common knowledge to all concerned employees. Investigations had established that no other person was guilty of flaunting the safety rules except the machine operators. The company disciplinary record reveals that stringent disciplinary action was taken in all cases of non-adherence to safety procedures.

The evidence adduced at the hearing showed that the one machine operator was employed in 1994. He knocked on at or about 4pm on 26 October 2006. He was going about his duties when he heard a load bang at or about 6pm. He later established that the bang was an explosion. He loaded explosive powder three times prior to the explosion. He had consistently cleaned his area of responsibility following each run. Cleaning of the hopper only takes place at shift end. To the best of his knowledge he was not required to clean the bowl unless there was residue powder deposit on the mouth of the bowl. There is no requirement to clean in the absence of residue powder deposits. He did nothing out of the ordinary on the day that could have had the potential of endangering his life, limb and the lives and limbs of fellow employees. His immediate supervisor has never complained about his performance or raised any concern about his way of doing things.

He was summoned to the employer’s office on 8 January 2007 where for the first time he was notified of the pending disciplinary hearing. He denied that he was a senior operator. No one ever addressed him as a senior operator during the period of his employment.

The second machine operator was employed as a prime press operator. He was recruited in 1988 His dismissal took place in January 2007. He knocked on duty at 4pm on the 24 October 2007. He assumed duties at or about 4:15pm following a safety meeting. He checked and was satisfied that the press was operational. He complied with the safety requirements where it concerned cleaning namely on spotting powder spillage or following every two production runs. He claimed to have no training on the cleaning standard but had seen it displayed at his work station. He testified that he had been in the employer’s service for twenty years. Operators have to ensure that there is no spillage and that the cloths are wet. As soon as there is a spillage or dry cloths, operators are expected to do cleaning. He was aware of the cleaning standards document which was in display on the wall at the affected work station. Management has never taken liberty to explain the standard to the workers and no one has ever worked according to the standard. He maintained that only after the incident or explosion of 24 October 2006 did management introduce the two runs production cleaning standard.

It was his experience that when a tipper loaded the powder, the production floor must be cleared of all operators. A tipper operator only cleans when there is spillage. The only time when the spill tray is decanted in the water bucket is at knock off time or shift change over. The spill tray is emptied into the hopper during the manufacturing process.

The conduct complained of was that the machine operators failed to adhere to standard safety procedures and thereby endangered lives and the employer’s property. Deviation from or failure to adhere to prescribed safety standard could have devastating and harmful consequences so argued the employer.

At the hearing the employer testified that:

· The machine operators, one of whom was a tipper operator and the other a press operator compromised safety standards in the interest of increased production.

· The machine operators ignored the operations instructions where it directs that production and associated equipment and machinery should be cleaned following every two production runs.

· The machine operators conduct had the potential of causing an explosion arising from residue powder deposits on equipment and machinery that is bound to explode following any given friction.

· The machine operators conduct amounted to gross misconduct and had led to an irretrievable breakdown in the employment relationship.

· To support the employer’s case evidence was presented of video footage, safety briefs, operations instructions and statements by the machine operators.

From the onset there was no argument by the machine operators that the employer’s case, where it concerned operations instructions, was without foundation. The machine operators and the employer were further in agreement that the operators were trained into the established operating instructions.

The dispute was and at the heart of the matter was whether the operating instructions were complied with to the letter and if not, whether deviations were sanctioned and indeed encouraged by shopfloor management.

The machine operators argued that deviations were common place and had the blessing of shopfloor management. Shopfloor management would do anything to push production figures even if it meant bypassing safety standards by allowing more than two production runs without the required cleaning to take place.

While taking cognisance of the fact that senior management did everything in its power to provide a safe working environment it did not seem that shopfloor management had the same approach.

The commissioner commended the employer, a company trading under licence, for doing everything possible not do anything that would jeopardise its licence and that it appeared from the operating instructions, safety briefs and the cleaning standard policy that senior management took safety really serious.

The question arose as to whether the same could be said of shopfloor management, in particular the team manager of the affected area. The said team leader was not called to testify – a tactical error in my view - and that could have been the downfall of the employer’s case according to the commissioner who felt that the team leader would have shared more light on the subject as he is the man in the front line so to speak.

Needless to say the employer was instructed to re-instate the dismissed machine operators. It is imperative for middle to top management to ensure that that the established precautionary measures are consistently adhered to by all, in particular supervisory or shopfloor personnel. Systems must be in place to regularly monitor whether the established precautionary measures are being adhered to. I can think of at least five investigations or formal inquiries in which I was involved where deviations from established precautionary measures had been condoned and, oddly enough, most pertain to Lock Out Procedures and confined spaces. Not only will you be unsuccessful in trying to discipline or dismiss workers who follow condoned deviant procedures, you will most probably face prosecution in these instances should an incident occur.

I did touch on this matter in my latest Subscriber Newsletter but felt that this issue warrants a wider audience.

Sex pests beware. My upcoming newsletter will highlight the pitfalls of sexual harassment at the workplace, whether section 8 of the OHS Act could be applicable and how the company can pay the price for your exploits. Also how post traumatic stress has become compensable in terms of the COID Act.

Click here for my previous OHS Practitioner Newsletter.

Click here for my latest Subscriber Newsletter.

Click here for my latest OHS Chat & Skinner Newsletter.

For more go to www.klasslooch.com

My condolences to Goldfields after those unfortunate incidents. I also must express my annoyance at the Minister of DME for prejudging the matter and publicly accusing Goldfields of gross negligence. Such routine pronouncements by her and her colleague, the Minister of Labour, are most annoying. I think that the Minister of Labour (hopefully) has learnt to refrain from such pronouncements after the National Prosecuting Authority (NPA) did not charge SASOL despite him labelling it a “slagmajien’ after the Secunda incident. Whatever happened to the sub judice rule or is kowtowing to a wider (union) audience more important?

Regards

Raynard