South African Occupational Health and Safety Laws place extremely onerous obligations on the employer to safeguard the health and safety of employees and other persons who may be affected by the employer’s activities.
In relation to the mining industry, the Mine Health and Safety Act, No. 29 of 1996 (MHSA) requires the employer (the entity which holds the right to prospect or mine) to implement appropriate measures (to the extent reasonably practicable) to ensure the health and safety of employees which, under the MHSA are defined to mean any persons who are employed or working at a mine (therefore including service providers). A failure by an employer in the mining industry to comply with its responsibilities in terms of the MHSA can lead to drastic consequences including stoppage of mining operations, suspension or cancellation of the right to prospect or mine, imposition of administrative fines and criminal prosecution.
The non-mining industry is regulated by the Occupational Health and Safety Act, No. 83 of 1993 (OHSA), where the responsibility for the health and safety of employees is placed on an employer of employees, or a user of machinery. Unlike the MHSA however, the term “employee” is narrowly defined and limited to the traditional employer / employee relationship. This does however create potential complexities because it may make it more difficult to identify where responsibilities lay, in workplaces where there are multiple employers, for example where there are several service providers.
As with the MHSA, a contravention of the provisions of the OHSA can result in work stoppage notices (prohibition notices), and criminal prosecution.
Regardless of whether the MHSA or OHSA applies, employers typically commit to the concept of “zero harm”, and the health and safety systems that are implemented in support of compliance with the MHSA and OHSA strive to ensure that all employees go home each day, unharmed.
Responsibilities for health and safety are however not only placed on employers – employees are responsible for their own health and safety and the health and safety of fellow employees, typically referred to as the “brother’s / sister’s keeper” principle.
The responsibilities placed on employers and employees are often reflected in drug and alcohol policies which include self-testing (in support of employee duties for health and safety) and mandatory testing (in support of the employer’s responsibilities), and whether it is because of a commitment to health and safety or a fear of the consequences, many employers implement a zero-tolerance policy in relation to drugs and alcohol, which can result in dismissal for a “first offence”.
Intoxicating substances in the workplace have been the subject of two recent judgments, both of which have resulted in extensive debates on whether or not the judgments have been correct, taking into account the requirements under the OHSA and MHSA.
In the matter of Mfundo Lee Marasi and the Petroleum Oil and Gas Corporation of South Africa (SOC) Limited handed down by the Labour Court on 26 June 2023 (Marasi Judgment), the Labour Court found that testing negative for cannabis, in the context of PetroSA’s business environment was an inherent requirement of the job and was therefore not unfair discrimination. PetroSA’s Alcohol and Substance Abuse Policy provides for urine testing to determine whether any intoxicating substances, including cannabis, can be detected.
The court emphasised that the requirement of testing in PetroSA’s Alcohol and Substance Abuse Policy was reasonable, taking into account the working environment (inherently dangerous) and it was aligned with the health and safety legislation applicable to the industry (OHSA).
In the case of Samancor Chrome Limited (Western Chrome Mines) v Willemse (Samancor Judgment), the Labour Court was required to consider whether dismissal was the appropriate sanction, after Mr Willemse had been subjected to breathalyser tests, and a blood-alcohol test, In this case, the focus was more on the accuracy of the testing methods (with the court accepting that a laboratory blood-alcohol test was more accurate than tests carried out by breathalyser units) rather than whether or not Samancor Chrome’s Drug and Alcohol Policy, which set a zero level, was fair or appropriate. The blood-alcohol test performed by the laboratory returned a negative result, despite a positive result being identified with a breathalyser unit. The court found that the employer, which carried the onus of proving that the employee had alcohol in his blood, could not provide credible, reliable evidence to this effect.
The Samancor Judgment does not, in any way, exclude the use of breathalyser units, but it does confirm that blood-alcohol tests from a laboratory are more accurate than breathalyser units, and that employers who want to rely on detection of any alcohol (or other intoxicating substance), will need to ensure that the method of testing, is accurate and reliable.
There can be no doubt that employers are permitted, and in fact, are by law, required to set appropriate standards of conduct in the workplace, including where they relate to safety, and employers can set a zero limit on intoxicating substances. The key focus is clearly on proof of the substance in the system of employees. Employers will also need to carefully consider related elements including the training of persons who are tasked with testing employees for intoxicating substances.
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Read the original publication at Beech Veltman.
