Klass Looch Associates

Employer OHS Champion since 1986 

Dear Folks                                                       

I thought it was perhaps time to rehash the rather tired topic of the so-called written appointments in terms of section 16(2) of the OHS Act. Although there has been no change to the wording of section 16(2), DoL has started enforcing, via audits, their own interpretation. Although I disagree with DoL’s interpretation and have motivated my stance many times – including on my website, suffice to say that employers / CEOs who deviate from their rigid interpretation can readily kowtow to DoL’s interpretation and achieve the same result.

Section 16. Chief executive officer charged with certain duties

(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.

(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

(3) The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or any liability under this Act.

(4) or the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department.

DoL maintains that only the ‘Direct Reports’ of the CEO can be assigned duties in terms of section 16(2) of the OHS Act. These appointments are to be regarded as Statutory Appointments. A statutorily appointed section 16(2) person can then make so-called Non-Statutory appointments further down the line and even a Non-Statutory appointee can make these Non-Statutory appointments.

They argue that the principle of delegare delegatus non potest rule applies meaning that the person to whom duties have been delegated cannot delegate those very same duties further. This advice was presumably obtained from DoL’s legal advisors who were tasked with interpreting the untested section 16(2) of the OHS Act. Decades ago when I studied law –Interpretation of Statutes – I was taught that one way to interpret a statute is to look at the wording of the draft of an Act. In this case the initial wording of the Draft OHS Act. Interestingly enough the draft read as follows:

(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.

(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may delegate any duty, including the power of further delegation, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

So it is quite obvious that the legislator originally encouraged or endorsed a scenario where a CEO statutorily ‘delegates’ duties down to his/her first reports who in turn can make statutory delegations / appointments down the line. The idea was to have devolution of authority. The legal advisors of the (then) Department of Manpower then advised against usage of the word ‘delegate’ because of its rigid legal baggage – obviously with reference to the very same principle of delegare delegatus non potest which DoL relies on today. So the legislator opted for the word ‘assign’ which has no rigid legal baggage. In fact not one dictionary that I consulted defined ‘assign’ as ‘delegate’. “Assign’ means to:

1. to allocate or give;

2. to appoint;

3. to designate.

Knowing the initial intention of the legislator and knowing that ‘assign’ differs from ‘delegate’, one wonders how sound the legal advice is that DoL obtained. In my view the delegare delegatus non potest principle does not apply. Google even goes further and says an exemption to the delegare principle can be made if the delegator specifically authorises further delegation! One must also bear in mind that the CEO is not obliged to make assignments as the word ‘may’ and not ‘shall’ or ‘must’ is used in section 16(2). So section 16(2) appointments – the assignment has evolved into a written appointment although no mention is made in the sub section to written appointments unlike, for example, the GMR2(1) Competent Person –are not compulsory either. Obviously any prudent CEO will appoint persons to assist him/her in the duty of ensuring OHS Act compliance lest there be a vacuum leading directly to the CEO which would impact on criminal liability if the employer contravenes the OHS Act. By assigning/ appointing competent persons to assist the CEO who is charged with ensuring the duties of the employer are properly discharged, the CEO creates buffers and barriers to protect him/her against potential criminal liability. And this is only right as the CEO is usually too far removed from the realities of the workface. There is no hard-and-fast rule as regard CEO criminal liability in terms of the OHS Act or even common law (workplace fatalities) but this is generally the case unless a contravention or incident can directly be linked to an act or omission on the part of the CEO.

While I have in the past be advising clients to follow the devolution route, whereby a (statutory) section 16(2) can appoint another (statutory) section 16(2) person , I now recommend that we kowtow to DoL’s interpretation since inspectors are enforcing their interpretation via audits. As I said at the outset employers, who follow the devolution route, can achieve exactly the same result with hardly any sweat. In fact the route I recommend illustrates how contrived DoL’s interpretation really is. Only the ‘direct reports’ of the CEO can be statutory section 16(2) appointees according to DoL. These are persons who report directly to the CEO. Their appointment s are cross-referenced to section 16(2) of the OHS Act and are thus statutory appointments. Assumingly DoL feels these appointments carry more legal weight and liability implications. I am not so sure. I maintain that any person who is in charge of a situation which has OHS implications is de facto a human employer / section 16(2) person and an appointment in writing merely reflects reality and makes it de jure. It merely formalises reality and creates a structure which is ultimately headed by the CEO. I also believe that ‘acting subject to the control and directions of the CEO’ in section 16(2) must not be narrowly interpreted as the ‘direct reports’ of the CEO. Surely all employees act, directly or indirectly, subject to the control and directions of the CEO?

The solution is for the CEO to utilise section 16(2) for his/her ‘direct reports’. The appointment letter must reflect that it is a statutory appointment. The statutorily appointed section 16(2) person can then make non-statutory appointment s down the line. The appointment letter must reflect that it is a non-statutory appointment but it must be cross-referenced to section 14 of the OHS Act stating that the contents of the appointment letter, for example ensure that the duties of the employer are discharged in an area of jurisdiction, be regarded as a lawful order given to the appointee in the interests of health and safety. This appointment thus has force-of-law. So is there a difference between statutory and non-statutory appointments? Both refer to a statutory provision of the OHS Act. Perhaps we can label it a section 14(c) appointment? After all supervisors are appointed in terms of section 8(2)(i) which does not provide for an appointment . Section 8 requires employers to provide employees with a safe and healthy working environment and sub section 8(2)(i) merely expands on this duty by requiring, inter alia, proper supervision by a person trained to fully understand the hazards.

I think the bottom-line is that DoL should never have become involved with in-house appointments. Why make such appointments optional and then become prescriptive when employers /CEOs exercise the prerogative.

Section 14. General duties of employees at work.

Every employee shall at work -

(a) take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;

(b) as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;

(c) carry out any lawful order given to him and obey the health and safety rules and procedures laid down by his employer or by anyone authorised thereto by his employer, in the interest of health or safety;

(d) if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer; and

(e) if he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.

Recently I have been inundated with queries regarding the criminal liability impact of acceding to an appointment in terms of section 16(2) of the OHS Act. Many feel that it creates potential personal criminal liability which did not exist before. I have never been a disciple of the theory that an appointment creates personal OHS liability. I believe that if you accept a certain managerial position within a company, you are de facto a ‘human’ employer with the possibility of personal OHS criminal liability if something goes wrong in your area of jurisdiction. This should ideally be reflected in letters of appointment. An appointment merely formalises this situation or makes it de jure. It creates a structure which is ultimately headed by the CEO or section 16(1) individual. This structure is designed to ensure you have the necessary OHS support from above. Everyone has potential personal OHS criminal liability – albeit it workers (section 14) or the ‘human employers (mostly section 8).

Lastly. I have recently locked horns with a few DoL inspectors who fail to understand that there could be a difference between a CEO (corporate title) and CEO as per definition in the OHS Act. A CEO in relation to a body corporate or an enterprise conducted by the State, is defined in section 1 of the Act as meaning the person who is responsible for the overall management and control of the business of such body corporate or enterprise. The definition links a CEO to a body corporate ((Pty) LTD / Limited / CC) which means that a CEO / section 16(1) person can be found in subsidiary corporate bodies – not business units that are not (Pty) Ltd / Limited / CCs – and there is no need to look to holding companies for the section 16(1) person. Recently an inspector demanded that the CEO attend a section 31 Investigation for a subsidiary company in Port Elizabeth. The person who was in control of the business of the subsidiary corporate body held the (corporate) title of Operations Manager. He is the CEO as per definition in the Act.

Regards

Raynard Looch