Are workplaces static or dynamic?

What are the rights and obligations of employer and employee in a working environment outside the premises of the employer? Willem le Roux from ENSafrica shines some light on the legal position*

Le Roux, executive consultant of the mine and occupational health and safety department at ENSafrica, notes that the primary duty of an employer in terms of the Occupational Health and Safety Act 85 of 1993 (the OHASA) is to provide and maintain, as far as reasonably practicable, “a working environment that is safe and without risk to the health of his/her employees”.

“The words ‘working environment’ are not defined in the OHASA. Obviously, the environment which constitutes a ‘working environment’ is an environment where ‘work’ is performed,” Le Roux explains. “The word ‘work’ is defined in section 1 of the OHASA as meaning ‘work as an employee or as a self-employed person, and for such purpose an employee is deemed to be at work during the time that he is in the course of his employment and a self-employed person is deemed to be at work during such time as he devotes to work as a self-employed person’.”

He adds that the word “workplace” is defined in section 1 as meaning “any premises or place where a person performs work in the course of his employment”.

“It is therefore clear that the ‘workplace” is not restricted to premises that are owned or controlled by the employer. Any premises or place where a person performs work in the course of their employment will therefore constitute a ‘workplace’ and a ‘working environment’.”

So, workplaces are dynamic; they aren’t just brick-and-mortar premises owned by the employer. But what does “reasonably practicable” mean?

“The words ‘reasonably practicable’ are defined in section 1 of the OHASA as practicable having regard to:

(a) the severity and scope of the hazard or risk concerned;

(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

(c) the availability and suitability of means to remove or mitigate that hazard or risk; and

(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.

“An employer is therefore required to consider whether a working environment is, as far as reasonably practicable, safe and not hazardous to health, by referring to the four requirements in the definition of the words ‘reasonably practicable’.”

Where the employer requires the employee to work at home, the area where the work is performed will be regarded as the “working environment”. “The working environment must be such that it is as far as reasonably practicable healthy and safe. In order to determine what measures must be taken to ensure compliance with this requirement, a risk assessment must be done.

“Depending on the scope of the hazard and risk in the work environment and of the work involved, an informal or formal risk assessment should be done. If the work involves work which is not hazardous, it should be practicable to require the employee to perform such an informal risk assessment.”

Le Roux notes that the employer should provide training that aids and enables the employee to perform risk assessments themselves. “Ultimately, the employer is responsible for providing and maintaining a healthy and safe work environment.”

* This article was written from a paper prepared by Willem le Roux and distributed by Lexis Nexis.