Section 28 of the Occupational Health and Safety Act (‘OHSA’) requires that inspectors are furnished with a certificate signed by or on behalf of the Minister designating them as inspectors and outlining any limitations to their functions. This certification proves that the inspector is a suitably qualified person and allows the inspector to perform their functions under sections 29 and 30 of OHSA. These functions include accessing and inspecting the premises, questioning persons, and the power of seizure. Considering the materially adverse consequences that could arise when inspectors exercise their powers, this certification requirement also protects affected persons by ensuring that inspectors must produce their certificate on request.
This bulletin addresses whether inspections and any ensuing contravention notices issued by inspectors without proper certification are valid under OHSA. It further discusses the nature of an appeal under section 35(3) of OHSA and the duties of inspectors when determining and applying what is ‘reasonably practicable’ under the Facilities Regulations.
In the case of Truworths Limited v The Chief Inspector: Occupational Health and Safety, Department of Employment and Labour, the appellant challenged the validity of two contravention notices issued by inspectors from the Department of Employment and Labour. The notices issued by the inspectors alleged that Truworths failed to comply with section 8(b) of the Facilities Regulations. This section requires employers, where reasonably practicable, to provide seating facilities to employees whose work is normally performed standing.
Truworths appealed to the chief inspector in terms of section 35(1) of OHSA to set aside the inspectors’ decisions but they were unsuccessful. They then appealed the chief inspector’s decision to the Labour Court in terms of section 35(3) of OHSA.
The Labour Court determined that an appeal under section 35(3) of OHSA constitutes an appeal ‘in the wide sense’ rather than a narrow appeal. As section 35(3) is aimed at monitoring and supervising the enforcement activities of the inspectorate, the Court found that it should be entitled to rehear the entire cause of the complaint de novo and even to consider new evidence or legal grounds advanced by the parties.
On appeal, Truworths raised the issue of the inspectors not producing their certificates upon their request. Despite being provided with ample opportunity to do so, the Respondents failed to produce certificates for the inspectors that issued the contravention notices. In light of this, the Labour Court held that the inspections carried out by the inspectors were unauthorised and invalid as the inspectors were not properly and lawfully designated under OHSA. Consequently, the contravention notices issued by the inspectors were also invalid and of no force and effect. Accordingly, the Court upheld Truworths’ appeal.
Additionally, the Court found that the inspectors had misconstrued their role by dictating specific solutions for Truworths to comply with the Facilities Regulations without considering whether they were reasonably practicable. The Court determined that what is ‘reasonably practicable’ requires a balanced assessment of both the interests of the employer and employee. Inspectors do not have the power to prescribe what they believe to be the best way to achieve the health and safety of employees. Instead, they must assess whether the employer’s measures feasibly ensure the health and safety of employees whilst considering factors such as costs, resources, capabilities, and the availability of alternative methods to achieve this objective.
This bulletin was authored by partner Sandile Tom and candidate attorney Tamrin Slager.
