I thought that I would devote this newsletter to a  practice which has been causing myself and many mandataries some concern.  In particular it pertains  to the right of a (principal) employer to hold an internal investigation after an incident by a contractor on the employer’s site.  Should the principal employer hold its own internal investigation, with the potential of incriminating the contractor, does the principal employer has a statutory as opposed to moral obligation to hold such an investigation and who controls the flow of information / evidence that would ultimately be passed on to DoL? Furthermore are both employers or users duty-bound to hold such an investigation? Should the contractor not be afforded the opportunity of ‘fighting’ its own case without another employer / user clouding the issue?

General Administrative Regulation 9. Recording and investigation of incidents

(1) An employer or user shall keep at a workplace or section of a workplace, as the case may be, a record in the form of Annexure 1 for a period of at least three years, which record shall be open for inspection by an inspector, of all incidents which he or she is required to report in terms of section 24 of the Act and also of any other incident which resulted in the person concerned having had to receive medical treatment other than first aid.

(2) An employer or user shall cause every incident which must be recorded in terms of subregulation (1), to be investigated by the employer, a person appointed by him or her, by a health and safety representative or a member of a health and safety committee within 7 days from the date of the incident and finalised as soon as is reasonably practicable, or within the contracted period in the case of contracted workers.

(3) The employer or user shall cause the findings of the investigation contemplated in subregulation

(2) to be entered in Annexure 1 immediately after completion of such investigation.

(4) An employer shall cause every record contemplated in subregulation (1) to be examined by the health and safety committee for that workplace or section of the workplace at its next meeting and shall ensure that necessary actions, as may be reasonable practicable, are implemented and followed up to prevent the recurrence of such incident.

From this regulation is it quite clear that there is no statutory duty on both the user and employer to internally investigate  any incident which resorts with in section 24 or requires treatment other than first-aid. Of course this only applies where they are different entities, with a contractor working on a site and where the principal employer either controls the equipment on which the contractor works. In other instances the contractor may be  working on the principal employer’s site but completely independently and on his own equipment. There may also be instances where, despite working totally independently from the principal employer’s plant, working on his own plant and machinery , the actions of the contractor impact upon the safety and health of the employees of the principal contractor.

In the instance where the principal employer is indeed the user of the plant, in other words, has the right of control over it or feels an incident involving the contractor may have impacted upon the safety and health or its own employees, the usually practice is for the principal employer of user to hold a separate internal investigation. Once again it is not a statutory duty and the principal contractor could defer to the internal investigation to the contractor and either endorse or reject the findings. The contractor in turn, may, also decide to use the principal employer’s internal investigation as a joint exercise since there is once again no statutory duty for both to hold such an investigation.

Principal employers are often annoyed an unsympathetic when contractors on site have an incident which requires an internal investigation and display hostility towards the contractor. Egos are involved and feathers are ruffled. Premature judgments are made  and I know of cases where DoL was informed of these judgments prior to a section 31 Investigation of section 32 Formal Inquiry. This makes it extremely difficult for legal representatives such as myself to formulate a ‘defense’ .I urge principal employers to back off especially where then is no link to an act or omission on their part. What may, at face value, appear to be negligence of the part of the contractor may not necessarily be the case upon closer scrutiny.

At the same time I do have sympathy for principal employers since section 37 of the OHS Act does impute criminal liability onto principal employers for the wrongdoings of contractors but that presumption of ‘guilt’ is rebuttable and if a principal employer can demonstrate that the incident was not linked to them via, for example, their unsafe plant and that they evaluated the safety credentials of the contractor prior to the contract, they would not be in the firing line.

If a contractor has an incident which co-coincidently is on a principal employer’s site and is not linked in any way to an act or omission of the part of the principal contractor, I urge them to back off. You have no legal duty (as opposed to moral duty) to get involved save perhaps reporting in terms of section 24  if it happened on your plant and machinery and , if you contractual relationship with the contractor or practice is to do that, don’t be tempted to throw the contractor to the wolves. There is a statutory investigative body in the form of DoL that will investigate and, if necessary, recommend prosecution to the National Prosecuting Authority.

Of course when construction work is being performed , clients and particularly principal contractors  must routinely audit the construction work of contractors. They are duty bound to get involved and liability is more easily imputed onto them for the crimes of contractors. But if you have discharged your duties as per construction regulation 4 and 5 and your audits did not detect anything amiss, the above also applies. If  you have, for example,  as a client or principal contractor approved the contractors health and safety plan which contains an acceptable risk assessment or fall protect plan and despite this, a trained worker acts negligently and causes an accident, you are still not legally obliged to hold an additional internal investigation and, at are most, are interested party to a DoL investigation or inquiry. It happened on your site and you are not happy. But all accidents don’t demand punishment. It’s lovely to sit in judgment of others.

I recall a case a few years ago where I represented a crane company after a fatal accident occurred. An employee was busy dismantling a lattice boom after the construction work was completed and signed off. He fell from a approximately a meter while standing on the boom hitting out pins with a hammer. The client and principal contractor both held investigations which were tantamount to an indictment of the crane operator. They liaised with DoL and even came up with a contrived way of dismantling lattice booms using scaffolding which they presented to DoL. This, despite the fact that this modus operandi of dismantling lattice booms is an accepted world wide practice. The construction work had terminated along with the provisions of the construction regulations. The client and principal contractor had, in any case, failed to obtain a health and safety plan with risk assessment from the crane operator and needed to be persuaded that construction work was concluded since that they had no vested interest in pursuing this line lest they get into trouble.  All the crane operator was doing was dismantling a machine post construction work.

In  an another case recently a Power Utility who, in my view at least, has no statutory duty or right to get involved since  they were neither the user of employer, held an inquisition by a panel of persons into a multiple fatal accident – while the bodies were still warm - and managed to traumatise all the role-players to such a degree that I though I should switch from professional legal representative to therapist. Folks be sensitive!  In this particular case I was representing the principal contractor and our tactic has been not to highlight the obvious shortcomings of the contractor but rather to leave it to them how to deal with DoL. I think it would be tacky to do otherwise. Our approach is to look at our own duties as principal contractor and to ensure that we were compliant.

Many principal employers reserve the right to hold some sort of formal inquiry / inquisition after a contractor has had an incident on their site and this often results in resentment with contractors becoming nervous as to what information may be made public. If principals employers are not the users and an incident occurs involving a contractor, take a back seat. Resist the temptation at a DoL investigation or formal inquiry to cross question the contractor and  defend your only your own statutory duties. If you, as a user, have uncomfortable questions to put to the contractor, hand these questions to them upfront – before a DoL investigation or formal inquiry. After all in most cases the contractual relationship will continue and this approach could avoid disharmony.

I do not believe that a principal employer has an automatic statutory right, especially when the principal employer is not a user as defined to hold an additional internal investigation. In my view the term contracted workers relates to labour from, for example, a labour broker. If the legislator meant contract workers to mean labour from an independent mandatary, it would have said so.

The bottom-line is be sympathetic.  Naturally if contractors acted recklessly you may want to throw the book at them but bear in mind that you need not be an accomplice to their downfall. Keep any communication between yourselves as principal employer and contractors out of the public domain. Naturally this will not apply if your ‘defense’ as principal employer or user results in the contractor’s downfall. An example could be where construction work is being performed and you as client or principal contractor stopped unsafe work and the contractor ignored your instructions and continued resulting in an incident.

Some thoughts. I would welcome your comment.