According to the law, Health and safety reps or SHE reps are excluded from both types of liability, in terms of their duties under the Occupational Health and Safety (OHS) Act.
When it comes to legal appointments, the general duties are set out inthe OHS Act. If a Section 8(2)(i) supervisor doesn't perform his duties in terms of the Act (which is to take reasonable steps to prevent incidents), he or she will be criminally liable should a workplace incident occur.
In case a supervisor performs his duties (such as reporting a risk to the Section 16(2) manager), and the manager does nothing about it, then the manager would then be liable for an incident, should one occur.
Moreover, if the Section 16(2) manager performs his duties (such as reporting the matter to the Section 16(1) CEO for resolution), and the S16(1) CEO does nothing about it, the CEO would be liable in turn.
Here are the valid principles when it comes to health and safety professional liability
Legal liability in terms of professional health and safety registration in the construction industry would be similar to liability in terms of legal appointments under the OHS Act, explains Subramoney.
A general duty under the OHS Act would become a specific duty under the Construction Regulations which means that lines of accountability are easier to define by duties, and the liable people would be easily identifiable.
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According to the previously mentioned source, "the Construction Regulations or any Regulations imposing legal appointments or registrations, do not change the consequences of liability" so "anyone who fails to discharge any duties placed on them in terms of an Act or Regulations could be held liable for incidents that occur". When it comes to employees without appointed health and safety duties, keep in mind that each employee must report unsafe or unhealthy work practices otherwise they can be also considered responsible in case of an injury.
In case a fatal workplace incident occurs, the persons responsible for health and safety may be held liable depending on their duties, and depending on who the deceased was.
"If the deceased was a visitor and did not receive proper induction
training, which resulted in the fatality, the person responsible for the health and safety induction
training would be held liable.
If there are no health and safety induction
procedures, it would be likely that the Section 16(1) CEO would be liable", announced the same source.
Here's how the regulations specify terms of liability
As Subramoney adds, the legal implications of the Construction Regulations Amendment of 2014 made it so that everyone becomes responsible for health and safety. Also, employers remain responsible to ensure that everyone complies with their duties.
External incident investigations by the Department of Labour aim to determine who is responsible for incidents. Note that employers may not tamper with an investigation.
In case registration is expanded to other industries, Subramoney explains, the lines of liability would be clearer and easier to prove, based on duties imposed on specific people.
Warning: Courts can and do seek individual OHS liability
It is a known fact that courts deal with such cases and the OHS Act in a more strict manner in a context where awareness is spreading.
On a final note, it's recommended by the same author that employers should have professional indemnity insurance, or personal indemnity insurance, depending on their business, and whether it has juristic personality.