Dear Folks

My last newsletter to you was almost entirely devoted to the tent-collapse tragedy in Pretoria on International Women's Day against the backdrop of the Construction regulations which are now in force. The probe is now complete according to reports and will be made public soon. DoL is quoted as saying that the investigation has been thorough and that it involved four or five investigators, including a wind expert. To further quote ‘soon the country will know who was responsible for turning a day celebrating the successes of South African women, into a tragic and life-changing day for one of them'. I’m interested in this particular incident not only because of its high profile but also because it happened within days of the promulgation of the Construction Regulations. I’ll keep you posted on the website.

Subscribers, I hope you enjoyed my newsletter on the scope of application of the Construction Regulations. It’s the first part of a series. You will have also noticed that I have posted on the website the first of a four part Guideline designed to assist employers in dealing with the appropriate law enforcement agencies from the moment a workplace incident occurs until the matter is laid to rest with special emphasis on the right against self-incrimination. A recent spate of highly incriminating voluntary reports to DoL as well as internal investigations, some already despatched to DoL, prompted me to try and drive home the point that one has an overriding constitutional right not to incriminate oneself in these reports or during testimony. This is true even if the employer version may hinder or hamper the official DoL or DME investigation in its endeavour to 'officially' establish the cause of an incident. It’s for this reason that the MHS Act has a provision which grants indemnity to persons whose testimony may be self-incriminating. This provision was obviously introduced to allow persons to ‘sing like canaries’, invariably to the detriment of the employer. Click here for that provision of the MHS Act. Will a similar provision find its way into the new ‘merged’ legislation? I have no doubt!

The tactic of drawing up a summary of events for presentation to DoL post an incident and from the employers perspective, devoid of any incrimination for presentation to DoL, has its merits. Routinely, however, these reports are drawn up by persons with a (over) zealous drive to expose everything in the laudable interests of health and safety but to the detriment of the employer’s potential exposure to criminal prosecution. Have someone with legal expertise vet these reports and ideally also be involved in the internal investigation.

One of the persistent problems we encounter with the section 31 Investigations and, to a lesser degree with section 32 Formal inquiries relates to their format. It is important for persons, particularly legal representatives who must brief their clients, to know the rules of procedure. Unfortunately there is no uniformity in this regard and to this end I am including below an e-mail which I recently sent to the Acting Chief Inspector. I also raise the question of DoL policy in general regarding their investigations.

‘I'm writing to you in the hope of obtaining clarity on a particular aspect of the OHS Act which has been the focal point of many queries and concerns by employers.

There appears to be no uniformity regarding the categorising of incident investigations by the Inspection & Enforcement Service (IES), in particular incidents which are required to be reported in terms of section 24 of the Act.

In terms of section 31 the inspector has a prerogative to investigate an incident, while this prerogative becomes compulsory in terms of section 32 if there is prima facie evidence of an offence. (The investigation is then conducted via a formal inquiry).

I assume that there is a Policy Document (a record as per the Access of Promotion to Information Act, 2000) which states which incidents must be investigated, albeit utilising either the nature of the incident, the nature of the injuries, the profile of the incident etc. I furthermore assume that some incidents are exempt from investigation, particularly those which do not result in injury, illness or death? Also which incidents may be concluded via the section 31 Investigation and which via the section 32 Formal Inquiry. There is also no uniformity regarding the format of a section 31 Investigation and hopefully you can offer some pointers in this regard as well. There must be an official approach here too? Some inspectors appear not to appreciate the difference between the two inquisitorial procedures and often section 31 investigations degenerate into some sort of hybrid investigation/formal inquiry. (Unlike the section 66 of the MHS Act, the OHS Act does not explicitly provide for the conversion of an Investigation into a Formal Inquiry. It then becomes difficult for persons such as myself to advise employers on the appropriate manner of preparation prior to an investigation by the IES.

I assume furthermore that all fatal incidents must be investigated or formally inquired into and within a prescribed timeframe?

I would greatly appreciate your response in order that I may forward it to concerned employers’.

All this and more at my November workshops. The agenda has naturally been amended to include a look a the new Construction and General Administrative Regulations. 10% discount for on-line bookings still applies and huge discounts naturally always apply to Subscribers.

Remember that employers have until 25 October to meet with the registered trade unions in order to consult or bargain in good faith and conclude an agreement concerning the nomination or election of health and safety representatives. This is in terms of General Administrative Regulation 6.

Good news for those of you in same gender relationships. Your relationship will undoubtedly be recognised by the Compensation Commissioner for purposes of the Compensation for Occupational Injuries and Diseases Act (COID Act). If contested however, the claim would have to be tested in court first. I base this on the finding in M A du Plessis v RAF (Road Accident Fund) 2003 where a gay man was compensated for the loss of support from his partner who was killed in a car accident.

I thought you deserve some serious stuff this time.

Chat to you soon.

The Devil’s Advocate.

Ps. Can atheists get insurance for acts of God?