Employers seeking an appropriate response to the civil unrest and public looting in Gauteng, KwaZulu-Natal and other parts of South Africa will have to consider different factual circumstances.
So says the EOHCB (Employers’ Organisation for Hairdressing, Cosmetology and Beauty), which has published a document detailing three possible scenarios, the first of which being if the employer closed the workplace due to looting, violence and/or damage to the property.
States the EOHCB: “Employers have a general common law duty of care towards their employees. In addition, the Occupational Health and Safety Act (OHSA) places an express obligation on employers to maintain a working environment that is free from any risk to the safety of employees, as far as reasonably practicable.
“While it is clear that the looting and unrest and the risks to employee safety are not related to the work being performed or caused by the operations of the business, in severe circumstances, protecting employees from risk may warrant the closure of some or all operations and requesting employees to stay away from work. Where employees are already at work, they should be reminded of emergency procedures, evacuation routes, and security protocols.
“Given the scale of the rioting, unrest and high tendency for violence, employers may consider implementing business travel policies and guidelines that limit employees’ exposure to possible harm – and most importantly, as far as possible, implement a policy of ‘self-removal’ if employees are reasonably concerned for their safety.”
In the second scenario, the employer has closed the workplace as a precautionary measure to protect the safety of employees and the property. The EOHCB continues: “Employers may decide to close the workplace as a precautionary measure. Since this is an employer-driven decision, employers should continue to remunerate their employees in full for the period of the precautionary closure. If this is not possible, employers should consult with their employees and agree with them on an appropriate alternative, which may include: remote working/ working from home (i.e. no impact on remuneration); paid leave; and temporary reduction in pay.”
Scenario 3 details a situation where the employer has not closed the workplace but employees are too scared to report to work. In such a case, the EPHCB maintains the employer will need to carefully evaluate the circumstances, on a case-by-case basis, when an employee(s) does not report to work due to safety concerns. Employers will need to assess whether this refusal is reasonable. The OHSA permits employees to refuse to work if they believe that they are unsafe or endangered in the workplace.
“If violence emerges at an employer's premises during operating hours, emergency protocols must be invoked and the protection and safety of employees must be of paramount importance. Failure to take steps to respond to a known risk to employee safety in the workplace, as far as possible, may amount to a breach of the OHSA and possible related litigation.”
The EOHCB document also gives details on other issues, including payment to employees in cases of the above scenarios. To access the full document click here