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66543231 Okuhle Radebe OHS2601
Occupational health ,safety and law (OHS2601)
University of South Africa
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Ohs
EXAM
Okuhle Radebe
66543231
QUESTION 1
i) What does 'Reasonably practicable' mean when ensuring health and safety (per Part 3 of the OHS Act 2004) (10-50 words)
It means that which is, or was at a particular time, reasonably able to be done to ensure health and safety, taking into account and weighing up all relevant matters including the likelihood of the hazard or the risk concerned occurring the degree of harm that might result from the hazard or the risk what the person concerned knows, or ought reasonably to know, about the hazard or risk, and ways of eliminating or minimising the risk the availability and suitability of ways to eliminate or minimise the risk after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk
(ii) Explain the implications of the argument by the DP insofar as its liability towards Mekoa and Zuzu is concerned and what in terms of the ‘reasonable person test’ needs to be done to determine whether DP is liable?
The reasonable person test is used to evaluate negligence. An accused is considered negligent if, in light of the facts, their conduct diverge from those of a hypothetical reasonable person.
The courts ask the following questions: would a “reasonable man”in the position of the employer have foreseen the possibility that a person may be injured? would the “reasonable man” have taken steps to guard against the accident which gave rise to the injury? did the employer in question fail to take the steps a reasonable man would have?
(iii) What does the term ‘properly used’ mean in terms of the OHSA?
QUESTION 3
(I) Discuss whether the employees are entitled to legal representation during the investigation.
NO
Persons at an investigation have no statutory right to legal representation. In terms of the common law, however, persons at an investigation will be entitled to legal representation if the matter being investigated is complex and the possible penalty for a conviction is great. This means that presiding inspectors would have to consider allowing legal representation during investigation and inquiries in terms of the MHSA. However, the accused employee may bring a formal application prior to the hearing for the presiding officer to consider allowing a legal representative to assist the accused employee at the disciplinary hearing. When exercising such discretion, the presiding officer should take into account the factors discussed above, and the decision in respect of such an application is final, although the accused employee may still refer a dispute to the Commission for Conciliation, Mediation and Arbitration or applicable Bargaining Council for procedural unfairness.
(ii) Discuss the purpose and effect of the certificate issued in terms of section 63 of the Mine Health and Safety Act (MHSA).
For the purpose of improving the effectiveness of an investigation the Chief Inspector of Mines, in consultation with the appropriate Attorney General, may issue a certificate that no prosecution may be instituted in respect of any offence arising from the event being investigated. Once the certificate has been issued, no disciplinary action or administrative fine arising out of the event investigated may be taken or imposed against any person. All persons who are afforded protection must however answer every question to the best of their ability and may not refuse to answer any question on the grounds that the answer may be self-incriminating. The Chief Inspector of Mines must in writing inform all persons questioned during an investigation of the protection provided by the certificate
(iii) After the investigation is concluded, a report must be compiled and submitted to a number of persons or bodies. Who are these persons or bodies?
the Chief Inspector of Mines
the employer
the health and safety representative
the health and safety committee
the registered trade union or employee that requested the investigation
QUESTION 4
(I) With reference to the applicable authority, discuss whether Anton is protected anyhow by the law against retaliation of any kind from the employer, including the dismissal for what he has done. An employer cannot terminate, reduce the employee's pay, or otherwise negatively affect the terms of the employee's employment because the employee complied with a legal notice, took a step that, in accordance with the terms of the OHSA, should have been taken, refrained from taking a step that would have violated those terms, or testified to the OHSA administration. The example below demonstrates that an employer cannot punish an employee by holding a disciplinary hearing, demoting them, transferring them, etc. for disclosing information regarding the health and safety of others being in danger. The following case illustrates that an employer may not victimise (by way of, for example, a disciplinary hearing, or demotion, or transfer, etc.) any employee for disclosing any information concerning the health and safety of others being jeopardised:
(ii) What are the ‘reportable incidents’ in terms of the Occupational Health and Safety Act (OHSA)?
The injuries and incidents to be reported under subsection (1) are (a) an injury or incident that results in the death of a worker (b) an injury or incident that results in a worker being admitted to a hospital, and for the purposes of this clause, “admitted to a hospital” means when a physician writes admitting orders to cause a worker to be an inpatient of a hospital, but excludes a worker being assessed in an emergency room or urgent care centre without being admitted,
(c) an unplanned or uncontrolled explosion, fire or flood that causes a serious injury or that has the potential of causing a serious injury,
(d) the collapse or upset of a crane, derrick or hoist,
66543231 Okuhle Radebe OHS2601
Course: Occupational health ,safety and law (OHS2601)
University: University of South Africa
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