Know the risks when employing someone off the street for ‘piece work’
It’s a common sight: A driver pulls up on the corner near your estate to pick up someone for a day’s ‘piece work’. Within seconds, he’s surrounded by people clamouring to get into the car. Finally, one person is allowed in and he or she is driven into the estate to perform the work the driver has in mind – be it cleaning windows, helping to dig a trench, paint a wall – any one of a myriad of things that need doing in a home or garden.
It seems like a simple day’s work – until that worker falls off a ladder, or plants a pick in his foot, or worse. Eugene Kruger, a director of health and safety consultancy Bakusasa Transformation Academy, points out that when you employ someone – even for a day – you are liable for any injury caused during that employment.
Duty to provide a safe working environment
“The Occupational Health and Safety Act (1993) (OHS Act) provides that every employer shall provide and maintain a working environment that is safe and without risk to the health of his employees,” Kruger explains. Failure to do so could result in criminal prosecution.
“The only time this responsibility is lifted is when the employer transfers that responsibility to someone who takes responsibility for their own employees, for example, the building contractor who brings his own workmen with him. In this case, the builder is an independent contractor, and is responsible for both his own safety and the safety of his workers on your premises.”
Let’s say the driver in the above scenario is looking for a painter to paint his roof, and he sees a man on the street, carrying paint rollers and holding a sign saying “Painter”. Can the driver assume that the sign indicates the man is an independent contractor?
“No,” says Kruger. “It would require the painter signing a document wherein he acknowledges that he is a contractor (and by implication, not an employee).
“This is provided for in Section 37(2) of the OHS Act, which transfers responsibility for ensuring the health and safety of workers to the contractor.” In this case, the driver becomes the painter’s client as opposed to his employer. Should the painter become injured due to unsafe work methods, then the driver would be protected from criminal liability in terms of the Act. Conversely, if he did not sign the document, the driver would be deemed liable as the ‘employer’ as defined in the OHS Act.
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