How many appointments are required in terms of the Occupational Health and Safety Act 85 of 1993 (the Act) and how many are discretionary? When asked for an absolute list of required appointments we can refer to the Act which places an obligation on employers to provide a safe working environment (article 8), but the question must be answered in terms of the specific work place and based on the identification and elimination of hazards.
The Act places responsibility for a safe work environment on the chief executive (article 16), who is bound to ensure that the duties of the employer are properly discharged. Section 16(1) allows for the delegation of this function but it must be noted that the persons to whom duties have been assigned are under the direction and control of the chief executive officer. Chief executive officers cannot assign duties and be under the impression that they are released from all responsibilities.
All staff must be made aware that these obligations are shared by employers and employees such that, employees are also expected to take responsibility for their own health and safety at work (as far as reasonably possible). The Act also envisages the delegation of certain duties to qualified employees based on the size of the undertaking, the number of employees and the type of functions performed in the workplace.
Certain appointments are compulsory for all employees above a certain size, such as Health and Safety representatives and first aiders and others such as machinery supervisors must be appointed if the enterprise performs the specified functions.
Caution must be exercised when choosing, training and appointing these assignees as the appointments do not limit the employers or chief executive officers responsibilities in terms of the Act or possible common law liability.
If a regulation or section of the Act requires a person to be appointed, then such appointment can be made by using that specific reference. All other appointments that the employer or management deem necessary may be done on a letterhead of that organisation, if the appointment is sufficiently detailed and the appointee capable – it will have the same legal effect as one made in terms of a regulation or section of this Act.
As a minimum an appointment letter should contain:
- The name of the entity;
- The name and designation of the person making the appointment;
- The name of the person being appointed and his or her designation;
- The area of responsibility of the appointee must be apparent;
- The duties (i.e. scope of authority) of the appointee should be clearly specified;
- The name of, or the designation of a person who the appointee must report to should be indicated,
- The period of validity of the letter of appointment i.e. date of commencement and date of termination must always be current;
- Signatures of both parties
A workplace risk review, with input from employees, experts and management would identify the types of hazards and the safety measures necessary in each environment and would assist the CEO and Health and Safety Officer to determine the appropriate number and type of appointments required beyond those stipulated in the Act.
Dingley Attorneys is able to conduct a legal audit of your workplace and indicate whether the appointments comply with the Occupational Health and Safety Act.
Please feel free to contact us to discuss this further at 021 712 7661 or firstname.lastname@example.org