Employers are charged with certain functions and responsibilities in terms of either the Occupational Health and Safety Act, 85 of 1993 ("OHSA") or the Mine Health and Safety Act, 29 of 1996 ("MHSA"). These acts assume that employers in certain industries or of a particular size is however unable to perform the functions itself and must therefore rely on an appointment structure, which consists of various managers and other appointed persons, to perform the functions and responsibilities which are entrusted to the employer in terms of either the OHSA or the MHSA, on behalf of the employer.
The employer must make certain legal appointments in accordance with the sections and regulations of either the OHSA or the MHSA in order to ensure legal compliance. It is not always necessary to appoint a person in terms of a specific section, unless the OHSA or MHSA requires same. It is however important to remember that letters of appointment should not be a mere paper exercise to pay lip service to formal legal compliance, but that the letters of appointment must be effective in order to add value to the company's health and safety management system, and in doing so ensure that the functions entrusted to the employer are performed and compliance is ensured.
The delegation of functions and responsibilities are done in letters of appointment. Key elements that, in our view, should be included in a letter of appointment, regardless of whether it is done in terms of the OHSA or the MHSA, are as follows:
• The name of the entity must be clearly indicated;
• The name and designation of the person making the appointment;
• The name of the person being appointed and his or her designation;
• The area of responsibility of the appointee must be clearly identifiable;
• The duties (i.e. scope of authority) of the appointee should be clearly stipulated;
• The name of or a designation of a person who the appointee must report to should be indicated,
• The period of validity of the letter of appointment i.e. date of commencement and date of termination should be indicated;
• Signatures of both parties
The following are, in our view, some of the more important factors that an employer should take into account when appointing a person, not only to enhance the effectiveness of the appointment structure, but also to ensure that the employer's duties and responsibilities entrusted to the employer are performed:
• The person making the appointment must have the necessary authority to make the appointment;
• The person making the appointment must be confident that the person so appointed is competent for the specific functions and duties that are expected of that specific appointee;
• The person making the appointment must ensure that the appointee is not burdened with such an excessive amount of duties that the appointee cannot perform all the duties and responsibilities so assigned to him or her;
• The appointee must be made fully aware of his or her responsibilities (i.e. scope of authority) and what his or her legal liability will entail in case on non-compliance;
• Only current, applicable legislation should be mentioned in the letter of appointment and repealed legislation should be deleted; and
• The person who bears the responsibility (i.e. the person delegating certain duties or obligations) must take reasonable measures to ensure that the appointee complies with his or her obligations, as far as is reasonably practicable, since the person making the appointment, still fulfils a supervisory function.
The mere fact that a delegation has been made in a letter of appointment, does not relieve the employer of any accountability in terms of the OHSA or MHSA. Various elements of statutory compliance as well as damages in terms of common law, in the event of an incident, rely heavily on the substantive aspects listed above. Thus, it is of the utmost importance that the employer provides appointees with letters of appointment that are in line with the key elements and factors mentioned above in order to limit the employer's legal liability.
Written by: Stef Viljoen, Professional Assistant at Cameron Cross Inc.