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posted 18 May 2020, 07:06 by Gerry Kangalee   [ updated 18 May 2020, 07:11 ]

Kathleen Davis (NWU Health and Safety Officer)
As the lock down is gradually lifted in phases, more and more people will be travelling and businesses will be opening. The threat of Covid-19 remains and the public health authorities have 
published Guidelines  for  Businesses/Facilities/Institutions Reopening after lifting of Restrictions  Post COVID-19. 

They have highlighted three key areas as part of a continuing defence: 

● Sanitising

● Distancing

● Wearing a mask

Sanitising means washing your hands at regular intervals for at least 20 seconds and includes using a sanitiser. Social distancing is about keeping at least six feet away from the next person. And wearing a mask, uncomfortable as it may seem, is an elementary precaution to avoid spreading the droplets that may contain the Covid-19 virus.

Here comes the real challenge. When we go back to work can we achieve these objectives? More importantly, will the employer have those same objectives or put production and profits first?

We do not have to be reliant on the employer and we can take things into our own hands. By using a mixture of the law, collective action and solidarity, we can impose a safe working environment on the employer.

Section 6(1) of the Occupational Safety and Health Act is clear on the duties of every employer:

“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees.”

That means the employer has a primary duty to ensure they provide a working environment which satisfies the three key public health authorities objectives of sanitising, social distancing and wearing a mask.

If they refuse, Section 15 of the OSH Act opens the door to direct action by workers to defend themselves:

“An employee may refuse to work or do particular work where he has sufficient reason to believe that there is serious and imminent danger to himself or unusual circumstances have arisen which are hazardous or injurious to his health or life”

It is important to stop work in the correct way so that you can get full pay and the union can defend your actions.

Refusing to work

● On refusing to work or do particular work the employee shall immediately report the circumstances of the refusal or intended refusal to the employer and a representative of the safety and health committee [section 16(1)];

● The employer shall immediately ask the safety and health committee to investigate the refusal to work [Section 16(2)];

● Where there is no safety and health committee, the employee should report the circumstance of the intended refusal to the employer and the OSH Chief Inspector. [Section 16(3)]; (Call the OSHA
Hotline 623-6742 and keep a record of all actions)

Refusal to work following investigation

● After an investigation, or any steps taken to deal with the circumstances that caused the employee to refuse to work, it is found that the employee has reasonable grounds for stopping work, an OSH inspector shall be notified. [Section 17]

Employee to be available

● During an investigation the employee shall be in a safe place at the workplace and be available to assist the investigation [section 19(1)]. (Stay at work, do not go home. If necessary be available at work on subsequent days too)

Employee deemed to be at work

● Pending the investigation, no employee shall be required to work in the dangerous circumstances that have caused the refusal to work until after the employer has taken remedial action [section 20(1)]; (If the employer resolves the problem, you can go back to work)

● An employee who refuses to work is deemed to be at work and be paid from the time they started to refuse to work until an OSH Inspector or the Chief Inspector has decided the safety risk [section 20(2)].

● A decision of the OSH Inspector or Chief Inspector can be challenged up to the Industrial Court [section 18].

No discipline, dismissal, reprisal by employer

● No employer shall:

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker, or intimidate or coerce a worker,

because the worker has acted in compliance with the OSH Act [section 20A].

Entitlement to be paid

● Pending and during an investigation, the employee shall be deemed to be at work and the employer shall continue to pay at the usual rate [section 21].

Going to the Industrial Court

● The OSH Act allows an aggrieved person to apply to the Industrial Court for redress [section 83A]. (This is the long route; direct action is quicker and more effective)

Gerry Kangalee,
18 May 2020, 07:08