Information
Constructive Dismissal
Constructive dismissal is probably one of the most misunderstood concepts in South African Labour Law. On the one hand the employee may see any action by the employer that does not directly favour his position, as negative. The employer on the other hand is often...
SOCIAL MEDIA – ITS DANGERS
During the past couple of months, we have seen an increase in disciplinary action taken against employees due to the “incorrect” use of social media. The first point to note is that any adverse posting done by an employee could have a negative effect on the Company....
Our Field Of Expertise
Mediation / arbitration is such a vast field, that any good mediator / arbitrator must specialize in a field. Wilbrink & Associates have, due to their experience and academic background, decided to specialize in the Labour and technical field. Even this field is very...
Why Fight? Mediate Instead
Headings like “Church and residents clash”, or “Community fighting environmental company” makes you think: is fighting the real solution? Both sides have a legitimate case, but is fighting in court the answer. In the case of the church, the community is complaining...
Disciplinary Procedure: A Prerequisite
Every company should have a well documented disciplinary procedure in order to discipline any employee should the need arise. While acting as Chairman of various disciplinary inquiries, I have noticed that a number of companies did not have a proper procedure. The...
STANDARD CLAUSES
After my previous News Letter (Alternate Dispute Resolution) I received a number of calls requesting sample clauses to be added to their documents. I would like to quote the AFSA clauses: Arbitration Clause for incorporation in Standard Contracts or for use before a...
ALTERNATIVE DISPUTE RESOLUTION – CRITICAL
Prof. Mervyn King, the well known advocate, judge, chairman of listed companies as well as a CEO of a listed company once said ”In order for directors (managing members) to discharge their duty of care to a company they have to ensure that a company has an adequate...
Indemnity
Due to my interest in and knowledge of animals and dogs in particular, I was asked by an attorney to arbitrate over a dispute between a dog owner and a dog club and its event organizers. A well bred 2 year old dog with a couple of accolades already behind his name was...
Wage Negotiations: A different approach
We were requested to assist a company with its wage negotiations. The Company had a very difficult and unpleasant wage negotiation the previous year. We decided to “play the game” slightly differently. We got our Training man to go to the company and train the workers...
MEDIATION vs. LITIGATION
Wilbrink & Associates were recently involved in two very similar cases. Both involved the termination of a lease agreement. In the first case the tenant decided to terminate the lease on grounds that the noise levels emitted from the neighbor were too high. Wilbrink &...
INTERNAL DISPUTES
Internal disputes within a company can lead to considerable loss of productive time and if not handled correctly it can destroy the good working atmosphere in the company. It is therefore of utmost importance that these matters are dealt with swiftly and correctly....
Disciplinary Hearing: Contravention of the OH&S Act
Disciplinary Hearing: Contravention of the OH&S Act We were requested to chair a disciplinary inquiry regarding an employee who consistently contravened not only the company’s rules but the Regulations of the Occupational Health and Safety Act. At a glance it seems...
Disciplinary Hearing: Absence Or Fraud?
Towards the end of 2015 an administrative staff member of a small company submitted a request for leave from 23rd December and returning on Monday the 4th January 2016. The staff member did not arrive on Tuesday the 22nd December for work; neither did he phone in to...
Disciplinary Hearing: Theft Of Consumable Products
During the latter part of 2015, we chaired various disciplinary hearings on behalf of our clients. All were successful, (no comeback). I would like to highlight some of the problems encountered that could have been avoided. A delivery truck of one of our clients (a...
Some Comments From Our Courts
After my previous letter sent to you, some people were under the impression that an Arbitrator or Mediator would replace the Company’s Attorney. This is not the case at all; the Arbitrators / Mediators work very closely with any Company’s Attorney. To give you a...
To Mediate Or Not: The Court’s View
In recent years the Justice Department has changed the emphasis from Litigation in Civil Cases to that of Alternative Dispute Resolution (ADR) processes, i.e. Mediation and Arbitration. The basic reasons for this are that utilizing ADR (a) reduces the load on our...
Mediation: The Right Chemistry
During the latter part of 2015 we were requested to act as mediator between two companies (Company A being an International Trading Company) and Company B (being a small detergent factory). Company A supplied 3ton of a 99% pure chemical to Company B, who manufactured...
Disciplinary Hearing Theft
During the latter part of 2015, we chaired various disciplinary hearings on behalf of our clients. All were successful, (no comeback). I would like to highlight some of the problems encountered that could have been avoided in the next few talks. A delivery truck of...
Legal Compliance – Fire or Explosion
Talk 6 on Legal Compliance – Fire or Explosion You have probably heard of the recent surge in factories burning down this year. Frans Wilbrink, our managing member is an Approved Inspection Authority, registered with The South African Department of Labour. He has...
Ethekwini Municipality’s Scheduled Trades and Occupations By-Laws
Talk 5 on the Ethekwini Municipality’s Scheduled Trades and Occupations By-Laws Are you a business owner, operating within Durban’s Ethekwini Municipality? Does your operation perform any of the following activities listed here? “A” Acid works Alkali works Ambulance...
ASBESTOS IN THE WORKPLACE
Asbestos is a very disabling fibre when inhaled. Modern factories have very little or no asbestos, while older factories may have it in the form of roofing (cement asbestos), as insulating material or in the form of gaskets (excluding asbestos processing factories)...
Functions Of Health & Safety Representatives
The duties of Health and Safety Representatives are very often misdirected. The limited duties are summarised as follows: a. Review the effectiveness of the health and safety program b. Identify potential hazards and potential incidents in the workplace c. In...
Talk 3 on EIAs
The National Environmental Management Act (Act 107 of 1998) Listing Notice 1: List of Activities and Competent Authorities (Phew! That’s a mouthful!) It’s been sometime since I posted my last talk. What can I say … the business of EIA’s is a busy one! Now let’s recap...
Talk 2 on EIAs
The backbone to the EIA In our last talk you were introduced to some Environmental Impact Assessment (EIA) lingo. Let’s throw a few phrases at you to jog your memory – Basic Assessment Process…, NEMA…? It’s hopefully all coming back to you by now. In this talk we’re...
Environmental Impact Assessment (EIA)
FAQ’s The National Environmental Management Act (NEMA) (Act 107 of 1998) Environmental Impact Assessment (EIA) Regulations provides a list of activities requiring Environmental Authorisation. To obtain Environmental Authorisation, an EIA is required. For most people...
Chief Executive Officer
Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in the Act, are properly discharged (16.1). Without derogating from his responsibilities or liabilities in terms of the Act, a chief...
Zinc Ash Safety Data Sheet
An example of a Material Safety Data Sheet Click here to download a data sheet
Registers Required
Some of the Registers that companies should have completed on their site (provided they make use of the equipment) are: General Administrative Reg 8 Accident Investigation (including incidents and near misses) - As and when required Asbestos Reg 14(1)(b) Inventory of...
Personal Protective Equipment
In terms of the Occupational Health and Safety Act (Act 85/93) all hazards must be engineered out and only if the hazard(s) cannot be engineered out should Personal Protective Equipment (PPE) be issued (S 8) The correct selection of PPE is very important. The selected...
Introduction To Safety
Safety is on every production/ operation person’s mind. The level of commitment does vary from person to person and from organization to organization. You may ask the question “Why the difference?” Those that have a low level of commitment see it as a drain of...
General Risk Assessment
In terms of the General Safety Regulations of the Occupational Health and Safety Act, regulation no. 2(1), “every employer (Manager) shall conduct an evaluation of the risks attached to any condition or situation which may arise from the activities of such employer or...
Assessing & Managing Risks In Hazardous Areas
Identify the risks associated with each of these areas Identify a risk rating for each risk Using a hierarchy to control or mitigate the risks Implement controls to mitigate these risks Ongoing evaluation of the risks in order to improve the environment further...
Health And Safety Committee
Every employer who has two or more safety representatives must have a safety committee. Each safety representative should be a member of the committee. In the case of large companies who may have more than one safety committee, every representative must be a member of...
Safety Resolution For The New Year
During my audits of various companies I have come across two major concerns that I would like to discuss when we are starting a new year: 1. I came across a number of emergency escape doors in buildings being locked and no key was found next to the door behind a break...
General Administrative Duties Of Employer
In terms of various Regulations of the Occupational Health and Safety Act, every employer must keep records regarding matters concerning his / her employees. I always recommend that all record regarding the employee be placed on the employee’s personal file. Under...
General Duties Of Employees At Work
In terms of Schedule 14 of the Occupational Health and Safety Act, every employee has certain duties to his employer and the work environment. Every employee shall: a. Take reasonable care for the health and safety of himself and of other persons who may be affected...
Listed Work
16. GENERAL DUTIES OF EMPLOYERS REGARDING LISTED WORK In terms of Schedule 12 of the Occupational Health and Safety Act, every employer whose employees undertake listed work or are liable to be exposed to the hazards emanating from listed work shall, after...
Duties Of Manufacturer
GENERAL DUTIES OF MANUFACTURER & OTHERS REGARDING ARTICLES AND SUBSTANCES FOR USE AT WORK In terms of Schedule 10 of the Occupational Health and Safety Act, any person who designs, manufactures, imports, sells or supplies any article for use at work shall ensure, as...
General Duties Of Employers
The first section states “every employer shall provide and maintain a working environment that is safe and without risk to the health of his employees”. Are there no fumes in the factory, is our ventilation adequate, are the noise levels kept at a low as possible...
Registers
In terms of various Regulations of the Occupational Health and Safety Act, registers have to be kept and completed on a regular basis. The frequency varies for different type of equipment. The purpose of these registers is to ensure that a competent person inspects...
Accident Investigation
In terms of Section 24 of the Occupational Heath and Safety Act, the employer shall report to the Provincial Director of Labour any accident where a person dies, becomes unconscious, suffers a loss of limb or part of it, becomes ill or likely to be off work for 14...
Machinery In Hazardous Locations
Many factories work with ‘hazardous’ substances. I have used the word factory rather than chemical factory as this applies equally to bakeries, sweet factories as well as factories manufacturing ‘plastic’ products. The word hazardous is in brackets, as some of the...
Environmental Monitoring
In terms of Reg. 2, 3 and 5 of the Environmental Regulations for Workplaces of the Occupational Health and Safety Act an employer is obliged to conduct a number of different environmental monitoring programs. The first one under Regulation no. 2 requires a heat stress...
Noise In The Workplace
In terms of Reg. 2 of the Noise Induces Hearing Loss Regulations of the Occupational Health and Safety Act no employer may allow a person to enter or work in an area where the noise rating is at or above 85 dBA. In order to know if your workplace has any noise zones...
Health And Safety Representatives
20. HEALTH AND SAFETY REPRESENTATIVES Every employer who has more than 20 employees in his employment at any workplace must appoint in writing for a specific period a safety representative. The number of representatives required will be 1 per 100 employees (or part...
Material Safety Data Sheets
In terms of Regulation 9A (1) of the Hazardous Chemical Substances Regulations every manufacturer, importer or trader of any chemical substance for use at work shall provide the person receiving such substance with a material safety data sheet (MSDS). This MSDS shall...
Medical Surveillance
In terms of various Regulations of the Occupational Health and Safety Act, i.e. Hazardous Chemical Substances Regulations (Reg. 7 (1)) Lead Regulations (Reg. 8), Asbestos Regulations (Reg. 9) and Noise Induced Hearing Loss Regulations (Reg. 8), medicals must be...
Air Monitoring
In terms of the Regulations for Hazardous Chemical Substances of the Occupational Health and Safety Act, Regulation no. 6 (1), “Where the inhalation of an Hazardous Chemical Substance is concerned an employer shall ensure that a measurement program of the airborne...
Hazardous Chemical Risk Assessment
In terms of Regulation no. 5 of the Hazardous Chemicals Regulations of the OH&S Act, an assessment must be made on all hazardous chemicals used or being manufactured in an operation. This must be repeated at least once every two years. This assessment must point out...