1.Common law is not absolute for employer to provide a safe working
environment
The common law responsibilities of employer are not absolute, but it depends on the
reasonable possibility of the employer in avoiding a specific accident or injury. In this
case, an objective test known as “the reasonable person test” is considered as a
measurement to identify how a reasonable individual in the situation of the employer
would have acted. In accordance with the common law, an employee who may
provide evidence that the employer had not acted in similar conduct as a
“reasonable person” would have, this employee will be granted to claim losses from
the employer on the nature of delict. Nevertheless, the Compensation for
Occupational Injuries and Diseases Act, section 35 has adjusted the common law
level. This section precludes an employee who have suffered an injury in scope of
employment from claiming losses from the employer, but the employee must now
claim from the Compensation Commissioner. The COIDA really makes it simple
because employees do not have to prove that the employer acted carelessly to claim
compensation. In this case, the employee will merely be granted a constant
compensation fund, and this can be less than that which the employee supposed to
claim when a delictual claim is approved.
2.In terms of the OHSA, the responsibility to ensure safety and health at
workplace, does not lie solely with the employer.
It is the responsibility of all persons in the work environment to ensure for health and
safety, not only the employer. Each employee must take as far as reasonably
practicable, personal, and individual responsibility pertaining to own health and
safety and that of other persons who can be affected resulted from one’s acts or
omissions. The employee must cooperate with and adhere to the health and safety,
rules, and procedures. In accordance with the Occupational Health and Safety Act,
an employee has a duty to report any unsafe or unhealthy condition that arises to
his/her attention, as far as reasonably possible, to employer or health and safety
representative. In addition, the employer must not misuse safety equipment or
behave negligently thereof, which poses the risk to the safety of any person. The
employee required to work together with the labour inspector in time of investigation.
3.Mine criminal liability at Mine for non-fulfilment of duties of employees
Malatji as a Mine health and safety representative will be criminally liable. In terms of
Mine Health and safety Act, an employee who fails to carry out his/her
responsibilities could be given a fine or can be convicted to the highest of two years
of imprisonment, but it depends on the nature of responsibility that is not carried out
or executed. The employee who performs an offence when he/she act contrary to an
obligation or unable to adhere to the provisions of this Act in which resulting to an
individual’s death, serious injury or illness thereof, will suffer an implication of
, criminal liability. Malatji commits an offence through executing or omitting to an act
and such performance or omission if it was in position of employer could have
established same offence during occupation. This Mine health and safety
representative did not take the entire reasonable measures to avoid an omission.
Just because he might be issued instructions forbidding a wrongful function is
inadequate evidence on its own that all reasonable measures were taken to avoid
the omission. The defence of negligence or error by Malatji will not be accepted. If he
decides to defend the injury of two and insist that it was due to the omission of an act
under the course of occupation thereof, this will not be accepted.
Discuss whether an employee who has claimed compensation in terms of
ODIMWA can also bring a delictual claim against the employer. Your answer
should refer to the effect of section 35(1) of COIDA.
In accordance with the Compensation for Occupational Injuries and Diseases Act, a
claim replacement for an employee’s right to claim damages from the employer
based on the common law rules. When an employee is granted for compensation
contemplated or prescribed in COIDA, section 35(1) precludes him/her from
establishing a common law claim against the employer based on recklessness of
employer or another employee. However, it is not required to provide evidence of
delict to receive compensation. Since an employee suffered a workplace disease
due to the employer’s carelessness, he/she is allowed to apply for increased
compensation. This Act grant an employee for compensation of the workplace
disease in the course and scope of duty.
What must and may Inspector do in terms of the MHSA to ensure the safety of
the mineworkers
As the mine inspector, I have the authority to question any individual on any issue
based on the Mine Health and Safety Act and particular individual required to answer
every question to his/her level best. However, it is not a must to answer any question
when the answer can be self-incriminating. I must demand any individual who has
control over, or custody of any document such as a plan, book or record in order to
reveal a particular document to myself. Any person based on the details above must
provide clarity of any entry or non-entry in any document through which a particular
individual has custody or control, but the person required to answer at his/her level
best as well without self-incriminating. As mine inspector, any document must be
assessed and duplicate it or take a specific portion from the document. I must
inspect any article, substance or machinery, any operation or condition and inspect
the preparations organized by the employer medical examination of workers. Any
document, article or machinery or any extract must be captured. In addition, I have
the authority to require any document prescribed in this Act from a responsible
individual, such as a permit, licence, permission, certificate and authorisation.
