While continued labour unrest and strike action in the mining sector are being managed and addressed through labour legislation and the criminal justice system (when applicable) employers need to be mindful of relevant provisions of the Mine Health and Safety Act, No. 29 of 1996 (MHSA).
Notwithstanding the illegality of strike action and related recourse taken by employers, employers are obliged to ensure that systems of medical surveillance are maintained and that relevant provisions of the MHSA satisfied even in the face of large scale strikes and labour unrest.
The MHSA is designed to safeguard and promote the health and safety of employees while performing work on mines which includes the obligation placed upon an employer to establish an appropriate system of medical surveillance.
Exit medicals compulsory
Importantly, in terms of section 17 of the MHSA, if an employee was subject to medical surveillance while employed at a mine and that employee's employment is terminated for any reason, an employer must arrange an exit medical examination.
The failure of an employer to comply with section 17 of the MHSA is a breach of the MHSA for which an administrative fine may be imposed upon an employer. The maximum amount of this administrative fine is ZAR 1 million.
Despite the current strike action, and in some cases large scale dismissals, employers must ensure continued compliance with section 17 of the MHSA, which includes that the:
exit medical must be held within 30 days of the date of the termination of employment;
Occupational Medical Practitioner (OMP) conducting the examination must produce an exit certificate with respect to each dismissed employee, indicating the results of all medical surveillance and the presence or absence of any occupational disease;
OMP must enter a copy of the exit certificate into employees' record of medical surveillance, and must provide each employee with a copy of the exit certificate; and
costs of clinical examinations and of any medical tests related to the exit medical examination must be paid by the employer
Importantly, while the MHSA requires the employer to arrange the exit medical examination there is no obligation on the employer to ensure that the employee attends this medical examination. The MHSA places this obligation upon the employee, by requiring that the employee "must" attend the exit medical examination.
Employers should take care to ensure that even in cases where large scale dismissals have been effected as a result of illegal strike action that, at least, arrangements are made (which are clearly communicated to the dismissed employees) for the conducting of exit medical examinations within 30 days of the date of the dismissal.
(Press release from Webber Wentzel, October 2012)