The South Gauteng High Court ordered the Department of Labour to allow access to the Paarl factory fire DOL incident report, six years after the incident.
The Department of Labour at the time had decided not to initiate any prosecutions as a result of the fire. The chief inspector had also denied access to the DOL incident report to family members of the deceased workers.
Judge Elias Matojane declared the DOL’s policy of refusing access to fatal incident reports, to be “unlawful and invalid”.
The court ruling opens the way for workers, their families, and trade unions, to access inspectors’ reports, in the course of protecting their rights.
In Paarl on 17 April 2009, a fire in a printing factory killed 13 workers and injured a further ten.
DOL misinterpreted the OHS Act
Judge Matojane also found in August 2015 that some provisions of the OHS Act, including the right to appeal if aggrieved by an inspector’s decision, are made “redundant” and “absurd” by the DoL’s interpretation of the Act.
The Constitution allows right of access to information held by state entities, based on values of “accountability, openness and responsiveness”, said Judge Matojane.
The court rules that information contained in the report may be needed to protect workers’ rights to fair labour practices, and the family members’ right to dignity.
DOL incident report must aid health and safety management
Denying employers and employees access to inspectors’ reports, also has the effect of depriving them of “the knowledge they require to ensure safe and healthy workplace.”
In addition, the content of the report would be necessary for the families to determine whether to initiate civil claims, such as claims for loss of support, against third parties whose negligence may have contributed to or caused the deaths of workers.
The court ordered the Department of Labour to provide the families with access to the DOL incident report within five days of the order.
Incident investigation law
The law requires a Labour investigation by an inspector, and a written report, after fatal incidents.
The OHS Act also requires employers to report, investigate and record incidents in which any person dies, becomes unconscious, suffers the loss of a limb or part of a limb, or is otherwise injured.
The OHS Act provides for the involvement of a wide range of parties in the inquiry, including employers, employees, family members and other interested stakeholders.
After fatal incidents, the DoL Chief Inspector allocates an inspector to conduct a formal inquiry to determine whether any offences in terms of the Act have taken place.
After the Paarl printing factory fire, the DOL inquiry ran for 20 days, in March and June 2010, where 30 witnesses testified and 3000 pages of evidence were submitted.
The families of those who died in the fire participated in the proceedings.
The appointed inspector is required to send a complete record of evidence to the Chief Inspector, and to the National Prosecuting Authority (NPA). Whether participants may view the report, is not clarified in the Act.
The inspector in the Paarl printing factory inquiry concluded his report in 2010, and submitted it to the DoL and the NPA.
In January 2011, the families of the deceased requested a copy of the DOL incident report, but were denied.
The families of the deceased then asked the South Gauteng High Court to direct the DOL to provide them with access to the inspector’s report.
The families received support in the proceedings, from the Industrial Heath Resource Group, a labour support organisation that specialises in occupational health and safety; the Congress of South African Trade Unions (Cosatu); National Union of Metal Workers (NUMSA); and the Chemical Energy Paper Printing Wood & Allied Workers Union.
Sources; Tim Fish Hodgson, human rights lawyer, @TimFish42, SECTION27. Allafrica.com.
Also see the IOL report on the court ruling.
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