Occupational Health and Safety Act

Your Employer has legal duties even during the festive season

As you reach the end of the year after working hard throughout, you are starting to look forward to the holidays, enjoying some socialising with your colleagues at your company's year-end function and so on. However, you are feeling the effects of workplace fatigue starting to impact your mental health and you wonder what the duties of your employer are in this regard. 

 The Occupational Health and Safety Act 85 of 1993 (“OHSA”) states that employers must provide and maintain a working environment that is safe and without risk to the health of employees. Section 8 of the OHSA outlines the general duties of employers to include the following:

>  Identifying and eliminating workplace hazards.

>  Conducting regular risk assessments.

>  Providing safety training and protective equipment.

>  Reporting serious incidents to the Department of Employment and Labour.

During the festive season, these duties become even more critical due to heightened risks associated with fatigue, the use of alcohol, and effects on employees' mental health.

Managing fatigue and working hours during the festive season

Many industries experience a surge in activity during the festive season, which might lead to extended working hours and increased pressure (especially in the retail industry). Fatigue can impact a person's productivity at the workplace and can also impair cognitive function, reduce alertness, and increase the likelihood of accidents.

The Basic Conditions of Employment Act 75 of 1997 (“BCEA”) regulates working hours and provides that an employee may not work more than 45 hours a week or more than 8 hours a day (if a week is 6 days long) or 9 hours a day (if a week is 5 days long). If an employee is required to work more than the regulated hours, they may be entitled to claim overtime. 

In order to assist with managing the challenges that accompany the festive season, employers must regulate working hours with due regard to their employees' health and safety. They must also avoid excessive overtime, especially in high-risk roles, and ensure that they schedule adequate rest periods and breaks.

In Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37, the Labour Appeal Court emphasised the importance of procedural fairness when dealing with employees suffering from mental health conditions exacerbated by overwork. The Labour Appeal Court held that in instances where mental health conditions may have contributed to the employee's misconduct, employers must engage with medical evidence before initiating disciplinary action. This case reinforces the need for employers to assess whether fatigue or mental health issues are contributing to performance concerns before taking disciplinary steps and every matter will have to be assessed on its own facts and circumstances.

The OHSA further provides for the implementation of support programmes and fostering a culture of openness in the workplace. This is bolstered by the judgment in the matter of New Way Motor & Diesel Engineering (Pty) Ltd v Marsland (JA 15/2007) [2009] ZALAC 27, wherein the Labour Appeal Court ruled that the employer failed to accommodate an employee suffering from depression by treating the issue as misconduct rather than incapacity. The Labour Appeal Court emphasised that mental health conditions must be addressed through appropriate procedures and accommodations. 

Use of alcohol and employment policies for year-end functions

Year-end functions are common in South African workplaces, often involving alcohol. While these events promote camaraderie, they also pose legal and safety risks. According to General Safety Regulation 2A under the OHSA, employers must prohibit intoxicated individuals from entering or remaining on work premises.

Employers can implement clear alcohol policies, which can also specifically deal with social events, to mitigate risks that can occur as a result of the conduct of intoxicated employees, such as the following:

>  Limiting the number of alcoholic beverages that each employee can have during the events (for example, providing them with beverage vouchers).

>  Opening drinks to prevent them from taking the drinks home.

>  Instructing the staff distributing the drinks to stop serving drinks to employees who are visibly inebriated.

>  Making transport services available to employees who cannot drive home due to being over the legal limit, at their own expense.

>  Informing employees before the beginning of the function that they are still expected to act accordingly and in line with the company policies.

Employees should remember that there are consequences for violating company policies even at year-end functions, which may lead to a disciplinary hearing for misconduct, inappropriate behaviour and breach of an employment contract.

Compliance with Department of Employment and Labour Guidelines

The Department of Employment and Labour regularly issues guidelines to help employers navigate seasonal risks. During the festive season, employers are advised to:

>  Conduct seasonal risk assessments.

>  Monitor employee fitness for duty after social events.

>  Ensure fire safety and electrical compliance for holiday decorations.

>  Address heat-related risks in summer conditions.

Employers must stay informed of updates and integrate these guidelines into their health and safety policies. Non-compliance can result in inspections, fines, and even closure orders.

Conclusion

Workplace safety during the festive season requires a multifaceted approach grounded in legal compliance and proactive management. By complying with the OHSA, implementing thoughtful workplace policies, supporting mental health, and following departmental guidelines, employers can create a safe, inclusive, and celebratory environment. 

Did you know…Performance issues resulting from a mental health condition must be treated as a form of incapacity and not as misconduct.