The employer's obligation of reasonableness in safety management : a study determining the relevant parameters and providing guidelines for their application.

Abstract

The high rate of accidents recorded in South African industry and the human and economic consequences involved reflect inadequacies in existing safety management policies and practices. The universally accepted right of employees to protection and the demands of social policy make the prevailing situation unacceptable. The complexities of the parameters of the employer's obligation for sound safety management requires practical guidelines for its understanding and application. The aim of this research is therefore to determine these parameters and to provide guidelines for their application. The parameters at issue are regulated by the principles of modern labour law, the developing common law, and statutory law such as MOSA. In order to pursue sound management practices and employment relations, the employer must not only take cognizance of his legal obligations but also various humanitarian, social and economic considerations. To correlate the complex nature of safety management with the demands of social policy, it is necessary to apply an appropriate standard of conduct to which every safety practice must adhere. This standard relates to the employer's general duty to take fair and reasonable precautions to eliminate or minimize occupational hazards. The employer's conduct is measured in terms of the objective standard of the reasonable employer in labour relations. The concept of reasonableness is therefore fundamental to the formulation of the parameters of the employer's obligation. The parameters are shown to centre round the reasonable foresight of the likelihood of harm and the implementation of reasonable precautionary measures to guard against the occurrence of such foreseeable harm. Furthermore, an unforeseeable incident that occurs in spite of preventive measures taken may reflect the need for subsequent preventive and corrective action. There is clearly scope for employers to adopt a more proactive approach in promoting sound safety management practices. Certain statutory, attitudinal and policy changes will be necessary for improved working conditions. These changes will include the formulation and implementation of an objectively-based safety policy that will facilitate the application of the parameters established. The proposed model flow-chart makes it possible to establish whether the parameters have been effectively implemented, and whether the employer or a third party is liable for a particular accident.