Employers must manage social risk factors

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?

xenophobiaEmployers have duties regarding social risk factors

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.

Related Posts Plugin for WordPress, Blogger...

The following two tabs change content below.
Sheqafrica.com is Africa's largest independent SHEQ Magazine, hosting over 2 000 articles and news items since 2007. Sheqafrica.com is owned and operated by De Novo Media, an indepedent media agency and is registered as a newspaper with the ISS.

6 thoughts on “Employers must manage social risk factors

  1. Thank you for your comment Deepchund. Unfortunately, the spike of xenophobic violence does pose a valid threat to occupational health and safety, whether we like it or not. In Durban and parts of Johannesburg, xenophobic violence was so severe at times that it affected businesses and workplaces, and transport.
    Why should we not manage such emergencies? If we plan for precautions against natural disasters, why not against social unrest? We do not live in a country where this is rare.

  2. I agree the employer is responsible for providing a work environment that is, as far as is reasonably practicable, safe regardless of whether the employee is SA or foreign. I feel the issue of social risk (IRO xenophobia) is now going overboard with regard to occupational safety. Is it a case of the writer just wanting to add her five cents worth to the recent happenings in the country.

  3. An interesting discussion, Shavanya. However, I would like to take you up on your statement:
    “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.”

    Even if the foreign employees are in the country illegally, presuming the employer is unaware of their legal status, which is not uncommon, then an employer still has a duty towards that employee. It’s no good saying, post facto, that he’s a foreigner so doesn’t have a right to protection in terms of the OHS Act!

    And in that context, surely if the employee is not legally an employee, and therefore, in your view, has no protection in terms of the OHS Act, surely that person becomes a “person other than (an) employee” under s9.1 of the OHS Act and therefore must enjoy the protection of the OHS Act?

    1. Thank you for your comment Richard,

      Firstly, I am not saying that foreign employees (whether legal or otherwise) do not deserve to be protected by the OHS Act. Remember, it is the duty of an employer to make sure that their employees are legally allowed to work in the country otherwise they can get into trouble with the immigration authorities.

      The OHS Act protects employees that enter into a valid employer-employee relationship. If a foreigner does not have permission to work in the country, the employer-employee relationship is not “valid” and therefore the OHS Act cannot apply. There are instances where people are hired even though their employer know that they do not have permission to work in South Africa, but this comes with a world of penalties for that employer.

      I agree that they would be protected as a person other than an employee, but one must keep in mind that the OHS Act places very specific duties on an employer towards his employees. In light of this, it is my opinion that the Constitution offers these individuals far greater protection and a far greater range of remedies.

      I trust that this addresses your query.

  4. Hi, This is the area of HSE that I love. Having studied in the UK for a while, were psychosocial risks are compensable, if proven. I now find it interesting that we are breaching the Xenophobia issue, that yes, in the workplace can cause Post Traumatic Stress disorders or other psychological conditions.
    At the time of doing my research I sent a letter to FEM, and asked the very question regarding psychosocial stresses that have been caused in the workplace. I received a letter back that stated; “FEM does not compensate psycho-social stresses, as we cannot determine if they have arisen inside the workplace, or as a result of factors outside the workplace, or is an inherent condition.” Mmmm, perhaps exacerbated by the work conditions?
    We are far behind leading countries in this regard, especially Europe. Australia, certain States in the USA plus a few others, and there is TONS of research available on fatigue, workplace induced stress, violence, bullying, musculoskeletal injury (how many employers in retail business provide seating for their workers in terms of regulation 8 of the Facilities regulations on prevention of musculoskeletal injuries due to static postures, long standing times etc), plus other psychosocial stresses.
    Imagine if we open this floodgate, everyone will have stress, mmmm, management would be accountable, mmmm, time to change the subject I would say. Interesting discussion.

    1. Shavanya, I agree with your thinking.
      Shane, I have lately developed a keen interest in how organisations manage Psychosocial hazards, especially in the environment I am currently working (oil and gas desert environments). I am also trying to come with a research proposal and have identified this area as a potential topic. If it is ok to share with me your research experience I would appreciate that.

Comments are closed.