Employers must assess and manage all workplace risks, including social risk factors such as xenophobia, as the Constitution and the OHS Act provides.
Recently South Africa has been plagued by prime examples of social risk factors, including xenophobia. In xenophobic attacks in April 2015, seven people were killed, many were injured and thousands were displaced.
Xenophobia, like most forms of unfair discrimination, is warned against in Section 9 (the equality clause) of The Constitution of the Republic of South Africa.
Where xenophobic sentiments are made public, it amounts to hate speech, and is not protected by the right to freedom of expression.
Social risk factors impact on health and safety
The effect that social risk factors such as unrest and protests have on our occupational health and safety cannot be ignored.
Many organisations have foreign nationals working for them, whose lives are being threatened. Many organisations have South African employees in several African countries who are now being threatened as a backlash against xenophobic attacks in SA.
Workplaces may be situated in areas where xenophobic violence is rife and employees may be endangered due to the location of their workplace.
Is there a duty on employers to ensure the health and safety of his employees from barbarism?
There is definitely a duty on employers to do whatever is reasonably practicable to ensure the health and safety of employees in terms of Section 8(1) of the Occupational Health and Safety Act.
Does this Act apply to foreign employees though? The answer is yes.
The OHS Act does not make a distinction in terms of citizenship. It applies to all legal employer-employee relationships that conduct business in the Republic of South Africa.
However employees must be legally permitted to work in this country.
This does not mean that illegal foreign national labourer’s rights are not protected, but they are protected under the Constitution, and not the OHS Act.
As to what ‘reasonably practicable’ measures are, that would depend on the risks faced by employees.
Ideally, a baseline risk assessment should be conducted to include socuial factors such as unrest or xenophobic violence.
Thereafter, proper controls may be identified and the ‘reasonably practicable’ course of action can be affected.
ADAPTING TO CHANGE
To perpetuate or permit xenophobic attitudes in your workplace, or to not effectively guard against the hazards of xenophobia, is not tolerated by our law.
Employees have the right, if an employer puts no steps in place to guard against these risks, to remove themselves from hazards and risks, and even from the work environment.
This is no different to any other threat to health and safety, and should be given due regard as such.
As our social climate changes, so must we, and re-assess and manage their impacts on health and safety at work.