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Can I prosecute my Health and Safety Representative for not fulfilling his duties?

by , 17 April 2013
It's your duty as an employer to ensure your HSE Rep is properly trained to perform their duties.
But what happens when your HSE Rep fails to fulfill their duties?
Let's take a look...

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Do you have more than 20 employees?

Don't ignore this health and safety obligation or else!
The DoL will slap you with a R50 000 fine or 1 year in jail if you don't have a health and safety representative.

Here's how to avoid it…
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Question:

Graham works for a large company and has three HSE Reps. He's been experiencing problems with one of the HSE Reps. Problems such as not receiving reports or risks assessments, and evaluations not done correctly. He feels the only way to solve the issue is to prosecute him.

Graham wants to know if he can prosecute his HSE Rep for not fulfilling his duties.
 
You could also be faced with the same situation right now.

So let's take a look at what Nell Browne our Health and Safety Helpdesk expert had to say…

*******************************
Don't ignore this health and safety obligation or else!

The DoL will slap you with a R50 000 fine or 1 year in jail if you don't have a health and safety representative.

Here's how to avoid it…
*******************************

Answer:

There is one authority that can prosecute in terms of the law, the national prosecuting authority. The DOL can only recommend to the director of public prosecution with evidence for him/her to take the case of non-compliance to court for prosecution. Therefore an employer cannot prosecute an employee for contravention of any prescribed duty or function in the Occupational Health and Safety Act, they can only follow their internal disciplinary procedures.

The OHS Act refers to two terms duties and functions and there is an important distinction between statutory duties and statutory functions.

Functions

Statutory functions are the legal powers the Act has given an individual/department/institution to perform their duties.

Duties

Statutory duties are the objectives the individual/department/institution must aim for when exercising his/her functions.

Yes Graham needs to make sure that the HSR is properly trained, if after training, he still does not get any joy he can remove him/her as HSR. It is important to include this process (removal of HSR) in the agreement Graham is required to conclude before designation of HSR.

Section 18(4) and not 20(3) exonerates the HSR from civil liability furthermore, It is not an offence in terms of section 38 for the HSR not to perform his functions.

How to appoint the best HSE Representative – your complete guide e-report gives you the ins and outs of what you need to know about your HSE Reps and their responsibilities.

Click here and I'll send you this e-report for only R495 including Vat.


Stay safe

LM

Leah Mathibe
Online Product Manager: Health and Safety

P.S. Find out how to select the best HSE reps with this special e-report on  How to appoint the best HSE representatives – your complete guide

P.P.S You can also get your questions answered and answer other people's questions - all you have to do is register on the Health and Safety Club, its FREE


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