Under certain SHE legislation, there are instances when it is lawful for an employee to refuse work.
Health and Safety Legislation
The Occupational Health and Safety Act (“OHSA”) places a positive duty on employers to take measures to eliminate and mitigate health and safety risks arising from exposure to hazards in the workplace.
The OHSA requires the measures to be “reasonably practicable” which means that measures taken must be proportional to the risk posed.
Employees may challenge a particular measure if they consider it to be disproportional to the risk or insufficient to address such risk. Further, under section 14 of OHSA, there is a duty on employees to follow lawful instructions given by their employers – an instruction to work in unsafe conditions would never be considered lawful and employees would certainly be entitled to refuse such tasks.
The employee however has a duty to report dangerous situations to the employer and must take reasonable care for his own health and safety.
Workers are further protected under section 26 of OHSA in that if they report their employers to the Department of Labour for unlawful or unsafe work in terms of the Act they may not be victimised, nor may they be disciplined or be penalised with a reduction in the remuneration they receive.
The Mine Health and Safety Act (“MHSA”) expressly provides in Section 23 for the right to leave a dangerous workplace without any fear of negative consequences or victimisation.
The MHSA states as follows:
23 (1) The employee has the right to leave any working place whenever-
(a) circumstances arise at that working place which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee; or
(b) the health and safety representative responsible for that working place directs that employee to leave that working place.
Workers must inform their supervisor that they refuse to perform work because they believe it is unsafe, and they must state why they believe the situation to be unsafe. If the situation is not immediately corrected, the worker, supervisor, and health and safety representative must investigate the situation by assessing the risk and controlling it appropriately.
The National Environmental Management Act (“NEMA”) protects workers who refuse to perform work which is environmentally hazardous in terms of section 29 thereof.
NEMA states that no person may be held civilly or criminally liable or may be dismissed, disciplined, prejudiced or harassed on account of having refused to perform any work if the person in good faith and reasonably believed at the time of the refusal that the performance of the work would result in an imminent and serious threat to the environment.
An employee who refuses work in such circumstances must as soon as possibly notify his employer that he has refused to perform the work, and give the reason for refusal.
Further, no person may advantage or promise to advantage any person for not exercising his or her right in terms of section 29, nor may any person threaten to take any action against an employee who has exercised his rights in terms of NEMA.
Employers need to be aware of the provisions discussed above, and the consequences thereof. They can never compel workers to perform work which is unsafe or environmentally hazardous.