Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.
By Carol-Ann Jordan and Jacqueline Belgrave
You do have the right to refuse to perform a specific job or task you believe is unsafe without being disciplined by your employer. The Employment Rights Act 2012-9 protects you from being dismissed as this would be considered an unfair reason for dismissal.
You can refuse to carry out an instruction where there is enough evidence that your health and safety are in imminent danger – imminent danger being defined as exposure to an immediate threat of injury or death.
However, even though you may feel that the task is dangerous and may refuse to carry it out when instructed, that is not where the matter ends. Your decision is acceptable pending discussion with the safety committee, trade union, staff association, or the Chief Labour Officer. If they determine that the task is safe, then you will be expected to perform the task as instructed.
Safety and health in the workplace are all about managing risks to protect both workers and the business. The responsibility for managing these risks lies with the employer, the occupier or owner of the premises and the employee. An employer hires persons for the purpose of carrying out any trade, business, profession, office, vocation or apprenticeship. That is the person (or entity) engaging your services. The occupier is the person who has control over a workplace – the manager. In some companies, the occupier and the employer might be one and the same. The owner is the person to whom rent for the building is paid or who is entitled to collect the rent.
Under the Safety and Health at Work Act 2005 (SHAW Act), there are certain duties and responsibilities that are incumbent upon both the employer, occupier, owner, and employee.
General duties and responsibilities of the employer/owner/occupier:
• To ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees.
• To provide maintenance of plant and systems of work that are, as far as is reasonably practicable, safe and without risks to health.
• The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of employees.
• To provide a safe place of work to ensure the health and safety of the employees.
• To provide competent and safety-conscious fellow workers.
• To provide safe systems of work.
General duties and responsibilities of the employee:
• To take reasonable care for his/her personal health and safety and of other persons who may be affected by his/her acts or omissions at work.
• Where a statutory provision, duty or requirement is imposed on the employer or any other person in the workplace, you must cooperate as far as necessary to ensure they can perform the duty or that they are able to comply.
• To report any contravention under the Safety and Health at Work Act or any regulations made which you are aware of while at work.
• To use the personal protective clothing or devices provided for your use correctly and ensure they are maintained and stored in the correct manner as directed.
Safety consultations (dialogue)
Employers must consult with employees or their representatives in developing measures to promote safety and health in the workplace. They must also make arrangements for their employees’ participation in the development and improvement of such measures.
This takes the form of safety delegates or safety committees. Where the business employs 25 persons or less, consultation should be facilitated through the selection and appointment by the employees of one or more safety delegates. Where there are more than 25 persons, a Safety and Health Committee, composed of an equal number of employer and employee representatives, should be established.
Offences, penalties and legal proceedings
Where the owner or occupier or employee contravenes any of the provisions of the SHAW Act or any associated regulations, that person is guilty of an offence.
The Act further indicates that if an offence is committed by a company with the consent of or the negligent action on the part of any director, manager, secretary or any other officer of that company, both the company and the officer are guilty of an offence.
Where found guilty of the offence for contravention of the Act or any associated regulations, where no penalty is specifically provided for, the owner or occupier is liable on summary conviction to a fine of $500 and a further $100 for each day the offence continues after conviction. However, if a person is injured, which results in a permanent injury or dies, then the owner/occupier is liable on summary conviction to a fine of $5, 000 or 12 months imprisonment or both.
It must be noted that safety and health in the workplace are non-delegable. That is, even where the owner or occupier subcontracts work to undertake civil works or construction on its behalf, the owner or occupier retains responsibility for safety in the workplace.
About Lifeline Labour Solutions: Lifeline Labour Solutions is a boutique partnership providing people management solutions to workplace challenges. Partners Carol-Ann Jordan and Jacqueline Belgrave are established practitioners with a wealth of knowledge and experience in Employment Relations, Labour Relations and Human Resource Management between them.
Email: [email protected] lifelinelabour. com; Tel: 1(246)247-5213