Klass Looch Associates

Employer OHS Champion since 1986 

OHS Act. Section 37. Acts or omissions by employees.

(1) Whenever an employee does or omits to do any act which it would be an offence in terms of this Act for the employer of such employee or a user to do or omit to do, then, unless it is proved that -(a) in doing or omitting to do that act the employee was acting without the connivance or permission of the employer or any such user;

(b) it was not under any condition or in any circumstance within the scope of the authority of the employee to do or omit to do an act, whether lawful or unlawful, of the character of the act or omission charged; and

(c) all reasonable steps were taken by the employer or any such user to prevent any act or omission of the kind in question, the employer himself shall be presumed to have done or omitted to do that act, and shall be liable to be convicted and sentenced in respect thereof; and the fact that he issued instructions forbidding any act or omission of the kind in question shall not, of itself, be accepted as sufficient proof that he took all reasonable steps to prevent the act or omission.

(3) Whenever any employee of any employer or user does or omits to do an act which it would be an offence in terms of this Act for the employer or any such user to do or omit to do, he shall be liable to be convicted and sentenced in respect thereof as if he were the employer or user.

(4) Whenever any employee of the State commits or omits to do an act which would be an offence in terms of this Act had he been the employee or mandatary of an employer other than the State and had such employer committed or omitted to do that act, he shall be liable to be convicted and sentenced in respect thereof as if he were such an employer.

(5) Any such employee referred to in subsection (3) may be so convicted and sentenced in addition to the employer or user.

(6) Whenever the employee of an employer is convicted of an offence consisting of a contravention referred to in section 23 , the court shall, when it makes an order under section 38 (4), make such an order against the employer and not against such an employee.