Employers Duty to Safeguard
Employees Safety
Under
the International Labour Organization (ILO) and World Health Organization
(WHO), occupational health is defined as “the
promotion and maintenance of the highest degree of physical, mental and social
well-being of workers in all occupations and Safety as a control of recognized
hazards to attain an acceptable level of risk.[1]”
Employers duty to safeguard health and safety
of their employees under Kenyan Law
In
Kenya, the Employment Act[2]
and the Occupational Safety and Health Act[3]
provides an employer with among other duties, the duty of employers to ensure
health and safety of their employees at their work place. Under section 65 of
Employment Act, an employer shall be liable to any death or injury suffered by
a child having suffered from a direct contravention of an employer.[4]
The Occupational Safety and Health Act, provides for the safety, health
and welfare of workers and all persons lawfully present at workplaces.
Generally, an employer has a duty of care
toward his employees at workplace. This duty requires the employer to ensure
the employees safety, health and wellbeing is guaranteed at the work place[5].
The safety, health and wellbeing of employees is also a concern to the employer
as it determines the productivity or success rate of the employment.
Instances when an employer will be liable for
safety of employees.
The
employers duty of care can be categorized as one; clearly defining jobs and
undertaking risk assessments, ensuring a safe work environment, providing
adequate training and feedback on performance, ensuring that staff do not work
excessive hours, providing areas for rest and relaxation, protecting staff from
bullying or harassment either from colleagues or third parties, protecting
staff from discrimination, providing communication channels for employees to
raise concerns and consulting employees on issues which concern them.
An
employer will be deemed to have breached the duty of care when they fail to
take reasonable steps in the circumstances to ensure the employee is safe.
Safe and non-risky provision and maintenance
of plant and systems and procedures of work
Maintenance
of plant, systems and equipment is carried out to prevent problems arising, to
ensure faults are dealt with and ensure equipment is working effectively. This
protects employees from suffering injuries caused by faulty equipment and
plants in the course of carrying out their duties. If the employee suffers
injuries during his employment and the employer had done his duty to ensure
proper maintenance of the equipment, employer will not be liable. In, Vincent Thompson v Dublin Bus & another[6] Vincent was an employee of Dublin bus
and he suffered injuries while driving one of his employers’ bus after the bus
became faulty and caused an accident. The Supreme Court held that Dublin Bus
had taken the necessary measures to ensure that the equipment could be used
without risk to the health and safety of its employees. The court did not find
the employer liable for the injuries suffered by its employee since the
employer had carried out his duty in ensuring proper maintenance of its
equipment to safeguard the safety of its employees while using them.
In
the case of Republic versus Chargot
Limited (2008)[7]
an employee at a construction site was killed when a dumper truck overturned
and he was trapped underneath it. There was no risk
assessment or training and the employee was not wearing a helmet or a safety
belt. Two companies and a director were
charged for breaches of the general health and safety duties in section 37(1)
of the Health and Safety at work act of 1974. The defendants were found guilty and fined.
They appealed on grounds that the prosecution had failed to raise sufficient
criticisms on the way the work was carried out but the appeal was dismissed. The
court held that the prosecution needed not to prove anything else other than
the death of the employee was as a result of the employer failing to provide
safety measures for his employees.
Safety arrangements while handling,
storing or transporting of hazardous substances.[8]
To ensure chemical
safety in the workplace, information about the identities and hazards of the
chemicals must be available and understandable to workers[9].
Employers dealing with hazardous chemicals in their workplaces must have labels
and safety data sheets for their exposed employees. They are obligated to train
them to handle the chemicals appropriately which include information on the
hazards of the chemicals in their work area and the measures to be used to
protect themselves. Employers will therefore be held liable for injuries
sustained by their employees if they failed to make necessary arrangements on
safety
Provision
of information, instruction, training and supervision necessary to ensure
safety and health at work of employees[10]
The training on the
safety equipment or facilities shall be provided by employers.[11]
Employees shall be under adequate supervision when dealing with equipment
especially of new technology by a person with adequate knowledge on the
functioning of the machine to ensure safety of such employees. Persons under
apprenticeship shall not be allowed to deal with machines, tools or plants
without adequate supervision.[12]
Maintenance
of safe workplace
Section 6 of the Occupational Safety and Health Act requires
the Occupier to ensure the workplace is healthy and safe to all employees,
other staff, customers and other persons who visit the workplace. Employers
must therefore provide all employees with working conditions that are free of
known dangers. Employers shall ensure that enclosed
working places are not overcrowded[13]
and have sufficient fresh air through proper ventilation[14]
and air conditioners. This protects employees from contracting communicable
diseases like tuberculosis from each other in poorly ventilated working areas.
Every workplace shall be kept in a clean state and free from effluvia arising
from any drain, sanitary convenience or nuisance.[15]
Where
an employee has been diagnosed with an infectious disease, the employer should
engage the Local Health Authorities since it’s a public health issue, and in
particular the Directorate of Occupational Safety and Health, in responding to
the emergency posed by the presence of the infectious disease at the Workplace.
The Employer should always comply with the law relating to reporting of
infectious disease at the workplace. The Employer should also follow the law
and its Workplace Human Resource Policy and Procedure on Sick Leave, and other
forms of Leave, before allowing the employee back at work.
In Bernard Gonzale Lando v Mehta
Electrical Limited[16] the claimant was dismissed by the
Respondent verbally on 11th April 2014 after informing his employer
of his illness of an infectious disease. The respondent justified its decision
on grounds that the Claimant had been intermittently sick, which called for the
respondent to further investigate and discovered that supervisors at the site
were not willing to work with the claimant and that the claimant did not
perform his role well in the past 2 years.
The
Respondent did not act as required under the Employment Act 2007 and in
particular under the Occupational Safety and Health Act 2007. There were no
measures shown to have been taken to bring the issue to the attention of the
Health Authorities. The Respondent offered the Claimant no assistance and
adopted the wrong approach in stigmatizing, and dismissing the claimant, to
minimize the risk of the infection spreading at the workplace.
There
was no evidence of Supervisors being unwilling to work with the Claimant and
the court found the employer in breach of his duty to ensure a safe working
environment for his employees from contracting infectious diseases and unfair
termination of the claimant. The Claimant was as awarded damages for harsh
treatment for being sick and loss of employment.
The
Work Injury Benefits Act provides for compensation to employees for work
related injuries and diseases contracted in the course of their employment and
for connected purposes. The liability for disablement of employee lies on
the employer. To deal with such liabilities an employer is obligated to
obtain and maintain an insurance policy, with an insurer approved by the
Minister in respect of any liability that the employer may incur under
this Act to any of his employees.[17]
In the recent Court of Appeal case
of Purity Wambui Murithii v Highlands
Mineral Water Co. Ltd[18],
an employer was held liable for injuries sustained by their employee at
their work place.
In
this case, the appellant, an employee of respondent fell and seriously injured
herself when she stepped on oil that had spilled on the floor. The spill was
from a particular machine which had been leaking since its installation. Despite
the respondent being well aware of the danger, the respondent failed to provide
the appellant with protective clothing or either deal with the oil leakage.
In
finding that the respondent liable, the court of Appeal stated; “there was an oil spill from a machine in the
production section; the machine had been leaking since it was installed eight
months prior to the accident. We find that the respondent failed to provide a
safe working environment for the appellant by not dealing with the said leakage.”
However,
the liability was equally shared between the employer and the employee bas it
was noted that the applicant failed to take a reasonable duty of care since she
worked under the same risky conditions for over three months prior to the
accident.
The provision facilities and
arrangements for safe employees’ welfare at work
Employers are required to
provide employees exposed to wet or to any injurious or offensive
substances with clothing and appliances that are adequate, effective and
suitably protective. These include suitable gloves, footwear, goggles and
head coverings.[19]
The Director is also required to register safety consultants to assess the
suitability and effectiveness of such protective clothes and appliances for
enforcement.
In John Barasa Wasike & another V Devki Steel Mill Ltd[20] the deceased was employed as an Ingot
processor in the respondent company. As he was oiling moulds tied to the crane,
he was suddenly lifted meters high as
the moulds were 920 kilograms. These working conditions were dangerous as he was
not provided with the protective gear. Due to the heavy weight of the mould
being 920 kilograms he suffered serious injuries from his waist downwards.
The court held that it was not
enough for an employer to provide safe working systems or appliances or wearing
gears for employees. The employer was also required to ensure that the systems
or appliances were followed and the proper gear worn or made available to the
employees under their care and supervision.
The court found the respondent was negligent and in breach
of the statutory duty of care assigned to them under the Employment Act as they
failed to take precautions against injury of the deceased while in their
premises and at his place of work. The court further stated that the respondent
had a duty of care towards the deceased, who was within the range of
foreseeable danger of physical harm and the breach occurred when the respondent
failed to provide precautionary measures and accordingly the claimants are
entitled to damages against the respondent in respect of the fatal injuries
suffered by the deceased under the Law Reform Act, and under the Fatal
Accidents Act for pain and suffering.
Informing
all persons employed of any risks from new technologies and imminent danger.
An employer
shall not employ a worker at any machine or in any process liable to cause ill
health or bodily injury, unless he or she has been fully instructed as to
the dangers likely to arise in connection therewith and has received
sufficient training in work at the machine or in the process or is under
adequate supervision by a person who has a thorough knowledge and experience of
the machine or process.[21]
Such training has to be done on
recruitment, transfer or change of job, the introduction or change of new
work equipment or materials and the introduction of new technology. The
training shall be adapted to take into account new changed risks, and
be repeated periodically. The employer is also required to incur the cost
of training. Also, an employee shall not be required to return to a workplace with
continuing imminent or serious danger to their safety or health.[22]
Employees’ participation in
application and review of safety and health measures
According
to ILO standards employers are obligated to consult with employees on issues
pertaining safety and health measures.[23]
In Kenya, the Director of Occupational Safety and Health Services is required
to ensure adequate consultations on proposed occupational safety and health
standards regulations and codes of practice.[24]
Occupational safety and health
standards under International Law
The International Labour Organization
constitution obligates the Organization to further among the nations of the
world programmes which will
achieve adequate protection for the life and health of workers in all
occupations.[25]
It
has more than 40 standards dealing with occupational safety and health. The
fundamental principles of occupational safety and health are constituted in
three major conventions.
The 1982 occupational safety and
health convention[26]
The
convention provides for the adoption of a coherent national occupation safety
and health policy[27]
to prevent accidents and injury to health arising out of or
occurring in the course of work.
These standards are to be implemented through policies developed by considering
national conditions and practice by trying to minimize causes of hazards in the
working environment by employers.[28]
The protocol establishes a periodic review of requirements and procedures for
recording and notification of related annual statistics.
It
considers health in relation to work to also include the
physical and mental elements affecting health which are directly related to
safety and hygiene at work.[29]
The 1985 occupational health
services convention 1985[30]
It
establishes the enterprise level occupational health services entrusted with
preventative functions responsible for advising employers, workers and their
representatives on maintaining a safe and healthy working environment. In
national conditions and practice employers shall formulate, implement and
periodically review a coherent national policy on occupational health services.[31]
It
promotes preventative safety and health culture to progressively achieve a safe
and healthy working environment. Ratifying states are obligated to develop a
national policy, national system and national programme on occupational safety
and health in consultation with representative organizations of employers and
workers.[33]
Each Member shall promote a safe and healthy working environment by formulating
a national policy.[34]
Under
Section 13 of Occupational Safety and Health Act (OSHA) duties of an employee
in maintaining safety in the work place are provided. These duties include
duty; to ensure employees safety, to comply with safety procedures, to report
any foreseeable danger, to wear protective equipments provided to him by the
employer among others. These duties only apply in employer- employee
relationship[35].
If a person is an independent contractor, this duty does not apply as held in John Charo versus Christopher Njao[36]
where the court ruled in favour of the defendants.
Liability of Employer for Employee
Safety When Travelling to and from Work
As
a general rule an employer is not liable for safety of their employees when
travelling to and from work. Employers are not liable to workers compensation
benefits for injuries sustained during when employee is commuting to and from
work. This is known as the “coming and going” rule.
In
Kenya, the legal framework does not directly provide for an employer’s
liability for their employee’s safety when travelling to and from work. As a
general rule, an employer is not liable for safety of their employees when
travelling to and from work. However, employers have been have been held liable
for safety of their employees while travelling to or from work in various
instances such as where the work involved requires the employer to provide
transport services to and from the working site, travelling is significant part
of employees duties among others.
In
the Case of Juma Keya V African Safari
Club[37]
an employee sued the employer for
injuries sustained while travelling in the ordinary course of employment. The
plaintiff sustained serious injuries in a road accident involving the defendant
vehicle when the steering wheel became lose making the driver unable to control
it.
In
holding the defendant liable the court stated, “The Defendant was in breach
of his duties to provide a safe transport system or mechanism as the vehicle’s
steering wheel was defective leading to the accident when the driver could not
control the vehicle.” The
defendant was held wholly liable for the injuries and loss sustained by the
employee.
The exceptions of the “coming and going” rule usually
consider whether the travel of the employee was somehow a benefit to the
employer and if it was closely related to the employee’s job duties. While
there are many exceptions to the “coming and going” rule, they generally fall
into four general categories:
a)
The
employee has no fixed place of employment and travels to multiple job sites
b)
The
employee injures himself while traveling to a location away from his normal job
site
c)
The
employee is on a special assignment for the employer; and
d)
Travel
is a significant part of the employee’s job duties
Traveling to Multiple Job Sites
In Hinojosa v. WCAB[38]
The court allowed an injured farm worker to be entitled to workers’
compensation from his employer. The employee in that case used his own vehicle
while traveling to various farms and jobsites. The court’s reasoning concluded
that the employee’s injury is covered by Workers’ Compensation because having
his personal vehicle at work is an “implied condition of employment.” This
exception would apply when an employee travels to multiple work sites and does
not have one specific, fixed location of employment.
“Commercial Traveler” Rule
Another
exception to the “coming and going” rule applies when an employee is away on a
business trip. The general rule is that an employee is considered to be acting
in the scope of his or her employment the whole time while away on business.
IBM Corp. v. WCAB[39], an employee usually worked at one
job site but had to travel out of state for a special business trip. His
employer encouraged and gave him permission to visit out of state relatives
while he was there. He had to work Monday through Friday but made a 60 mile
trip to visit his relatives over the weekend. He was killed in an automobile
accident when his cousin was driving him back to his hotel. The court concluded
that the 60-mile trip by the employee was a normal incident of his travel in
connection with his out of town temporary work assignment. The “commercial
traveler” rule suggests that an employer is responsible for injuries sustained
by an employee while traveling for work, even if they seem unrelated to the
employee’s job duties.
“Special Mission” Rule
Although
an employer is customarily not liable for injuries sustained by an employee en
route to work, an injury is compensable if during his regular commute- the
employee also is performing a special errand or “mission” for his employer.
Employers should think twice before asking an employee to perform a special
task for them before coming into work.
The
employee’s conduct is “special” if it is “extraordinary in relation to routine
duties, not outside the scope of employment.” In Schreifer v.
Industrial Acc Com[40] , the employee was a sheriff and was scheduled to begin work
at 7 p.m. on a particular day. At 1 p.m. of that day his supervisor called him
at his home and instructed him to report for duty “as soon as possible.” The
employee left for work in his own vehicle and was involved in a car accident.
The
court reasoned that because the employee was on a special mission at the time
of the accident, the employer was liable for Worker’s Compensation benefits.
Coming in hours early than he normally was required to report was a “special
service” to his employer.
Traveling is part an employee’s primary job
duty
When
an employer requires its employee to travel in order to accomplish their job
duties, the “coming and going” rule does not apply. An
injury is compensable where at the time of the injury, the employee is
performing service growing out of and incidental to his or her employment and
is acting within the course of his or her employment. If an employee is a pilot, bus driver,
delivery truck driver, etc. Their travel
is well within the scope of the employee’s course of employment.
In Huntsinger v. Glass Containers Corporation[41],
the employer was liable for injuries of a traveling repairman who had extensive
use of a truck while visiting customers in the field. Their travel is for the
sole benefit of the employer and they wouldn’t be able to do their job without
driving or travelling
[1] Effects of organizational health
and safety policies on employees’ performance in Lafarge (wapco) plc by
Badekale Oluseun Felix pg. 6
[2] Act No. 11 of 2007.
[3] Act No 15 of 2007.
[4] Section 65 Employment Act 2007.
[5]
Sec 6(1) Occupational Safety and
Health Act 2007
[6] [2015] IESC 22
[8] Section 83 Occupational Safety
and Health Act
[9]
note 8 above.
[10] Section 99 Occupational Safety
and Health Act
[11] Sec 127 2(a)(iv) Occupational
Safety and Health Act
[12] Section 98 Occupational Safety
and Health Act
[13] Section 48 Occupational Safety
and Health Act
[14] Section 49 Occupational Safety
and Health Act
[15] Section 47 Occupational Safety
and Health Act.
[16] [2015] eKLR.
[17] Section 7 Work Injury Benefits
Act
[18] [2015] eKLR
[19] Section 101 Occupational Safety
and Health Act
[20] [2013]eKLR
[21]
Section 99 of Occupational Safety and Health Act 2007
[22]
section 14 (1) Occupational Safety and Health Act 2007
[23]
Art 2 Promotional framework for occupational safety and health conventions 2006
No. 187
[24]
Section 23(3) Occupational Safety and
Health Act 2007
[25] Part III (g) constitution of ILO
1919
[27] Art 4 occupational safety and
health convention 1981 No. 155
[28] Art 6 occupational safety and
health convention 1981 No. 155
[29] Art 3 occupational safety and
health convention 1981 No. 155
[30] No. 161 of 1985.
[31] Art 2 The occupational health
services convention 1985 No.161
[32] No. 187 of 2006.
[33] Art 2 Promotional framework for
occupational safety and health conventions 2006 No. 187
[34] Art 3 Promotional framework for
occupational safety and health conventions 2006 No. 187
[35] Section 6 of Occupational Safety
and Health Act.
[36] (2005) eKLR
[37]
[2011] eKLR
[39] (1978) 43
Cal.Comp.Cases 161
[40] (1964) 61 Cl. 2d 289
[41] (1972) 22
Cal.App.3d 803
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