Mining industry responds well to Covid-19, but legal risks remain

20th November 2020 By: Schalk Burger - Creamer Media Senior Contributing Editor

The mining industry in South Africa responded well to the new directives to prevent the spread of Covid-19 and ensure employee health, a panel of lawyers from law firm Webber Wentzel said during the firm's annual Mining Roundup seminar on November 18.

"The mining industry proved adaptable and willing to change its practices to ensure the safety and productivity of employees.

"Mines included key roleplayers in their planning, as well as identifying where the roles of employees and leaders had changed and changing their roles as the legal regulations developed or to serve their risk mitigation strategies developed internally," said Webber Wentzel occupational health and safety specialist partner Kate Collier.

The role of occupation medical practitioners (OMPs) also changed as the Covid-19 regulations developed because their role included not only employee health but also public health aspects.

"The key themes we identified include changes to business risk management and communicating with employees on a daily basis, as well as these changes moving outside the scope of purely health regulations to identify what boards and management teams must do to keep operations safe and productive."

The role of the OMP has become increasingly important, specifically in relation to vulnerable employees, added Webber Wentzel labour law specialist partner Lizle Louw.

"Two aspects in the codes relate to OMP. Firstly, all employees must obtain a certificate of fitness from the OMP to work at the mine and, secondly, the vulnerability of a person, who may otherwise be fit to work, must be communicated to the employer.

"Health data is confidential and sharing must be done with due regard for medical confidentiality, and requires employee consent. If consent cannot be obtained, the identified vulnerable persons' information must be disclosed to the employer as aggregated information."

A vulnerable employee cannot work if the OMP does not issue him or her with a certificate of fitness. In some cases, this can include up to one-third of a mine's workforce.

"We have seen mines take all measures to avoid termination, including annual sick leave, reskilling options and mutual separation options."

If termination is necessary, incapacity, as defined in labour law, should be relied upon because there was no misconduct by the employee, nor is it a retrenchment in terms of operational requirements, explained Louw.

"Incapacity typically relates only to poor work performance and medical incapacity. In this case, it is not poor work performance nor medical incapacity, as they are not too sick to work."

Mines should look at the broader categorisation of incapacity in labour laws when implementing termination, advised Louw.

Many mines have also reached out to insurers to determine what claims a vulnerable person may pursue if she or he loses her or his job if employment is terminated.

"The problem is that these requirements are often not in the fund rules and in the policies funds have with insurers. Some employers are taking a principled-based approach to funds at mines and have asked whether these funds would be willing to countenance claims in this regard. The overwhelming response has been 'no' to a blanket acceptance of claims of this nature.

"However, there are three options we propose to assist with insurance claims. The first is to lodge disability claims while the person is unable to work at the mine while Covid-19 is still around and, if the claim is rejected, to refer it to the Pension Funds Adjudicator. The second is to approach the funds about rules amendments or, three, for the financial sector conduct authority to distribute a circular describing the situation and the types of claims," said Louw.

Based on the firm's experiences over the past eight months, employers who communicated effectively did the best to adjust to the new operating conditions, even when it was messages that employees and unions did not want to hear, said Collier.

"Effective communication made people feel valued and taken into the confidence of the leadership. Good communication also meant there was less scope for fake news to propagate and mines managed the crisis better."