Employee safety during COVID-19: When does an imminent and serious risk exist?

September 1st, 2020
x
Bookmark

Picture source: Gallo Images/Getty

The Minister of Employment and Labour issued the Consolidated Direction (the Direction) on Occupational Health and Safety Measures in Certain Workplaces on 4 June.

Clauses 48 to 56 of the Direction deal with an employee’s right to refuse to work due to potential exposure to COVID-19, if circumstances arise, which with reasonable justification, appear to pose an imminent and serious risk of exposure. An employee may not be dismissed, disciplined, prejudiced or harassed for refusing to perform any work under such circumstances. This article addresses the following questions:

  • What would constitute an ‘imminent and serious risk of exposure’?
  • Is the test in assessing an ‘imminent and serious risk’ a subjective or objective test?
  • What procedure exists for an employer who does not agree with an employee’s view that an ‘imminent and serious risk of exposure to COVID-19’ exists?
Relevant statutory provisions

Clauses 48 to 55 of the Direction, inter alia, determines:

‘48. An employee may refuse to perform any work if circumstances arise which with reasonable justification appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to COVID-19.

  1. An employee who has refused to perform work … must as soon as is reasonably practicable notify the employer … of the refusal and the reason for the refusal. Every employer must, after consultation with the compliance officer and any health and safety committee, endeavour to resolve any issue that may arise from the exercise of the right … .

  1. No employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work as contemplated … .
  2. If there is a dispute as to whether clause 49 has been contravened, the employee may refer the dispute to the Commission for Conciliation, Mediation and Arbitration or an accredited bargaining council for conciliation and arbitration …’.
How must the statutory provisions be interpreted?

The Minister of Labour issued the Direction on a matter, which falls under his mandate, Occupational Health and Safety. The wording of the Direction should accordingly be construed in the context of the Occupational Health and Safety Act 85 of 1993 (the Act) (see Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)).

In Industrial Health Resource Group and Others v Minister of Labour and Others 2015 (5) SA 566 (GP) the Act was held to be an expression of workers’ right to fair labour practice in s 23 of the Constitution. In terms of s 39(1)(b) and (c) of the Constitution, a court is enjoined to consider international law, and may consider foreign law, when interpreting the Bill of Rights.

Relevant international law is the International Labour Organisation’s Occupational Safety and Health Convention, 1981, where art 13 determines:

‘A worker who has removed himself from a work situation which he has reasonable justification to believe presents an imminent and serious danger to his life or health shall be protected from undue consequences in accordance with national conditions and practice.’

Article 13 protects a worker only against ‘undue consequences’, against unwarranted or inappropriate consequences. Consequences are not excluded, but should not be unwarranted or inappropriate.

Section 23(1)(a) of the Mine Health and Safety Act 29 of 1996 (the MHS Act) uses the words ‘serious danger’. The Guideline for the Compilation of a Mandatory Code of Practice for: The Right to Refuse Dangerous Work and Leave Dangerous Working Places issued by the Department of Mineral Resources states as follows:

‘Section 23(1)(a) of the [MHS Act] gives an employee the right to leave a working place if circumstances arise at that working place which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee. “Reasonable justification” is not defined in the [MHS Act], but means that the employee has some objective information that makes him or her believe there are unsafe conditions at the working place or the work to be done is unsafe to the extent that there is an imminent and serious danger to the health or safety of person … . The employee does not have to be correct in his or her knowledge or belief, but such belief should be reasonable given the information of the employee. These principles apply to both the RRDW [right of refusal to do dangerous work] and RLDWP [right to leave a dangerous working place].”

Section 54(1) of the MHS Act empowers an inspector to halt mine operations if he has reason to believe that the mine endangers the health or safety of any person. In Anglogold Ashanti Ltd v Mbonambi and Others (2017) 38 ILJ 614 (LC) the court determined that the state of affairs, which would lead a reasonable person to believe that it may endanger health or safety must be established objectively. The starting point in determining reasonable grounds is the standard of safety prescribed by the MHS Act, reasonable practicality. This is not an absolute standard, it requires an objective assessment of the work concerned and the associated hazards.

Proportionality, namely balance, necessity and suitability, an element of the right to reasonable administrative action (s 33(1) of the Constitution), also plays a role in the objective establishment of reasonable grounds. The notion that one ought not to use a sledge hammer to crack a nut plays a role in the objective assessment of reasonable grounds.

Oxford Dictionary and Thesaurus defines the words ‘imminent’ as ‘about to happen’ and ‘serious’ as ‘dangerous or very bad: Serious injury’.

Sections 44(1)(d) and (e) and 44(2) of the UK Employment Rights Act 1996 has provisions similar to that of the Direction. Matthew Sellwood and Anna Greenley in ‘Returning to work – a right to refuse?’ (www.devereuxchambers.co.uk, accessed 2-8-2020), state the following:

‘Before being able to benefit from the protection of these sections, employees must show that there were “circumstances of danger” which the employee “reasonably believed to be serious and imminent”.

It does not matter whether such a belief was true, but rather whether it was reasonable at the time. In Oudahar v Esporta Group Ltd [2011] ICR 1406, the claimant was dismissed for refusing to mop an area which featured obviously protruding wires. As HHJ Richardson put it: “If an employee was liable to dismissal merely because an employer disagreed with his account of the facts or his opinion as to the action required, the statutory provisions would give the employee little protection”.

The contemporary question is, of course, can COVID-19 amount to a “danger” under these provisions? … [W]e suggest the following may be relevant considerations:

… [T]he danger must be “serious”. … A claimant is more likely to reach that threshold where a risk assessment and protective measures in line with the Government’s guidance have not been put in place … . Similarly, where an individual is vulnerable and/or … comes into sustained contact with others as a necessary part of his employment, the threshold is more likely to be reached; [t]he danger must be “imminent”. Again, the circumstances of the employee’s working environment are likely to be explored. However, it is perhaps noteworthy that the … Coronavirus Restrictions … explicitly state that they were made “in response to the serious and imminent threat to public health” posed by coronavirus…’.

Interpretation of clauses 48 to 56 of the Direction

Clauses 48 to 56 of the Direction could be interpreted as follows:

  • Provision must be made for the health and safety of employees through reasonably practicable measures (s 8(2)(b) and (d) of the Act).
  • Reasonable justification means the employee or health and safety representative has some objective information that makes them believe there are unsafe conditions. The test is objective. The state of affairs must lead a reasonable person to believe that it may endanger the health or safety of persons at work.
  • The employee or health and safety representative does not have to be correct, but the belief should be reasonable, given available information. The emphasis is on availability of objective information, not the correctness or not of the belief.
  • The starting point in the determination of reasonable grounds is reasonable practicality. This is not an absolute standard, its nature and scope require an objective assessment of the work and associated hazards.
  • Proportionality, namely balance, necessity and suitability, an element of the right to reasonable administrative action, also plays a role in the objective establishment of reasonable grounds. The notion that one ought not to use a sledge hammer to crack a nut, plays a role in the objective assessment of reasonable grounds.
  • The words ‘imminent and serious risk of exposure’, literally mean a dangerous or very bad risk of exposure, which is about to happen. A distant and less serious risk would not place an employee under ‘imminent and serious risk of exposure’.
What would constitute an ‘imminent and serious risk of exposure’ and what can the employer do if the employee refuses to work?

An ‘imminent and serious risk of exposure’ is more likely where statutory measures have not been put in place.

Similarly, where an employee is vulnerable or comes into sustained contact with others as a necessary part of employment, the ‘imminent and serious risk of exposure’ could be more likely, depending on the health and safety measures implemented by the employer.

If an employee who works in the healthcare sector is not provided with appropriate personal protective equipment (PPE), this may entail the danger of an ‘imminent and serious risk of exposure’.

If an employee works in close proximity to someone who may have the virus, or who lives with someone who does, and who is attending work against statutory prescripts, this may entail an ‘imminent and serious risk of exposure’.

An employer is not entitled to terminate an employee’s services should the employee refuse to perform work, because of the ‘imminent and serious risk of exposure to COVID-19’.

An employee who refuses to perform work must as soon as reasonably practicable notify the employer of the refusal and the reason for the refusal. The employer, after consultation with the compliance officer and any health and safety committee, must endeavour to resolve any issue that may arise from the exercise of the employee’s rights in terms of clause 48.

If there is a dispute whether clause 49 has been contravened, the employee may refer the dispute to the Commission for Conciliation, Mediation and Arbitration or relevant Bargaining Council for conciliation and arbitration. However, no provision is made for the employer being able to resort to conciliation, as well as arbitration.

Clauses 48 to 56 do not preclude an employer from utilising appropriate procedures to resolve the dispute. Although the employer is not entitled to refer a dispute for arbitration, it is submitted that it is entitled to refer such dispute for conciliation. Such dispute would qualify as a ‘matter of mutual interest’ in terms of s 134 of the Labour Relations Act 66 of 1995. In Vanachem Vanadium Products (Pty) Ltd v National Union of Metalworkers of South Africa and Others [2014] 9 BLLR 923 (LC) the court was critical of a narrow interpretation of disputes of ‘mutual interest’.

Conclusion

Reasonable justification means the employee or health and safety representative has some objective information that makes them believe there are unsafe conditions at the workplace. The state of affairs must be such to lead a reasonable person to believe that it may endanger the health or safety of persons.

An employer is not entitled to take disciplinary action against an employee who harbours such objective view. The employer is entitled to resort to dispute resolution mechanisms, such as referring a dispute for conciliation.

Marius van Staden LLM (UP) is a legal practitioner at Savage Jooste and Adams Inc in Pretoria.

This article was first published in De Rebus in 2020 (Sept) DR 34.