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Your nine general safety duties as an employer
As an employer you must ensure the safety of your employees in nine ways (Section 8, OHSA).
You must:
Ensure that you have a safety management system and your employees know it.
Know how to identify, then how to eliminate/minimise hazards.
Select and demonstrate the use of protective clothing and equipment.
Ensure safety and absence of risks in production, processing, use, handling, storage or transport of substances.
Carry out a survey regarding hazards attached to any work performed for health and safety. You also need to know the risks attached to the use of machinery and equipment and develop precautionary measures to eliminate or minimise these hazards.
Have your supervisor arrange to train, inform and supervise all employees on health and safety.
The supervisor must be able to supervise and be equipped with the necessary authority to rectify unsafe acts and conditions (Section 8 (2) (i), OHSA).
Supervisors must ensure nobody does any work of any sort if the correct safeguards aren’t being taken.
If an employee gets injured, you need to prove that you did everything as a reasonable person to prevent that injury (Section 37, OHSA). You'll only be able to do this if you’ve clearly established the injured person’s authority and advised them (Section 8(2) (j)) of their authority (Section 37(1) (b), OHSA).
One of the easiest ways to make sure your employees comply with health and safety laws is to train them.
[source: labour bulletin newsletter]
Checks when interviewing a potential employee
Questions about disputes with previous employers.
You can't ask questions to establish if an employee has taken a previous employer to the CCMA or a Bargaining Council. This goes against his right to fair labour practice.
The LRA provides the means by which employees may challenge the employer and you can't penalise an applicant for exercising his rights. You also can't defend this question in terms of the inherent requirements of the job.
You can ask questions about disability.
Designated employers have a duty under the Employment Equity Act take affirmative action measures for, amongst others, persons with a disability. So, you can justify asking if a person has a disability in line with your employment equity plan. But you must have a plan and be able to point to the steps being taken to affirm people with disabilities.
But to achieve the employment equity purpose you don't need to know the nature of the disability. You can't ask the applicant to 'describe' the disability. You may argue that you need to know the disability to see if you need to make any accommodation and, if so, if you can reasonably do so. Cover this by phrasing the question in this way: 'If so, describe any accommodation you may require?'
You can't discriminate based on a criminal record.
You can check if an applicant has a criminal record as this is a matter of public record. But, you can't use the information to unfairly discriminate against someone. It's only relevant if the nature of the offence he was convicted for deems him unfit for the job he's applying for.
You can only do financial checks in certain situations.
Such checks could be regarded as an infringement of the constitutional right to privacy. Unless you can justify that they impact the inherent requirements of the job. On the other hand, the Insolvency Act imposes certain restrictions on un-rehabilitated insolvents and disqualifies them from holding certain positions. For example, a financial manager position. Verifying the status of an applicant is relevant for these kinds of jobs.
Do not ask for fingerprint checks
Fingerprint records aren't generally accessible to the public. You shouldn't compel an applicant to agree to having his fingerprints taken and don't discriminate against him for refusing to do so, unless the inherent requirements of the job justify this.
Be very careful when it comes to employee privacy
Remember, employee privacy extends to job applicants. Don't get caught out by asking for information that is irrelevant.
[Source: Labour bulletin newsletter]
Casual labourers are your responsibility
When you make use of casual labour and contractors, you must realise that under law you have the same responsibility in safety and health as you have towards your permanent employees. There’s nothing “casual” about casual labourers. The truth is you have to treat them the same as if they were your employees.
When using casual labour, you need to train them on the hazards of the job. And give them the right tools, equipment and personal protective equipment to enable safe work (OHSA Section 13; Duty to inform).
Remember, casual labour includes volunteers as you’re deriving benefit from their efforts, even if you’re not paying them!
For all your responsibilities about handling casual labourers and contractors contact a qualified safety adviser.
[Source: Labour bulletin newsletter]