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OHS Act Section 37: Understanding the Burden of Proof After an Incident
When a workplace incident occurs, many organisations immediately focus on who caused the accident. Was it the employee? Was it the contractor? Did someone ignore a procedure?
However, the South African Occupational Health and Safety Act (OHS Act) approaches the issue very differently.
Under OHS Act Section 37(1)(a–c), the law places a significant burden of proof on the employer when an offence occurs. This provision is often misunderstood because many organisations assume liability rests solely with the individual involved in the incident.
In reality, the law asks a much more important question:
What did the employer do to prevent the incident from happening in the first place?
In this article, we unpack what OHS Act Section 37 means, how the burden of proof works, and what organisations should be doing to protect themselves and their employees.
What Is OHS Act Section 37?
OHS Act Section 37 deals with liability for the actions of employees and mandataries (contractors).
It establishes an important legal principle:
If an employee or contractor commits an offence under the OHS Act, the employer may also be considered guilty, unless the employer can prove that they took all reasonably practicable steps to prevent the offence.
This means that after an incident occurs, the investigation does not stop with the individual involved. Authorities will also examine whether the organisation itself fulfilled its legal responsibilities.
OHS Act Section 37(1)(a–c): The Burden of Proof
OHS Act Section 37(1) outlines circumstances where an employer can avoid liability for an offence committed by an employee or mandatary. However, the employer must prove certain conditions.
In essence, the employer must demonstrate that:
1. They Did Not Permit the Act or Omission
The employer must show that the unsafe act or omission was not authorised or allowed by the organisation. This includes ensuring that unsafe practices are not tolerated or ignored within the workplace.
2. They Took All Reasonable Steps to Prevent the Offence
This is often the most important factor. The employer must show that systems were in place to prevent the incident, such as:
- Risk assessments
- Safe working procedures
- Training and competency verification
- Supervision
- Enforcement of safety rules
If these controls are missing or poorly implemented, the employer may struggle to demonstrate that they took reasonable steps.
3. They Exercised Due Diligence
The employer must prove that they actively monitored and enforced safety requirements. Simply having procedures on paper is not enough. Authorities will look for evidence that the organisation:
- Implemented safety systems
- Supervised work activities
- Corrected unsafe behaviour
- Ensured compliance with the OHS Act
In other words, the employer must demonstrate that they did everything reasonably practicable to prevent the offence from occurring.
Why OHS Act Section 37 Matters After an Incident
One of the biggest misconceptions in workplace safety is the belief that blaming the employee or contractor protects the organisation.
OHS Act Section 37 challenges this assumption.
After an incident, inspectors and investigators will typically ask questions such as:
- Was the worker properly trained?
- Were safe work procedures in place?
- Was the work adequately supervised?
- Were risks identified and controlled?
- Was the contractor properly vetted and managed?
If the organisation cannot provide evidence that these systems were implemented and enforced, the employer may still be held accountable.
How OHS Act Section 37 Applies to Contractors
Although this article focuses on OHS Act Section 37(1)(a–c), it is important to understand that the same principle applies to mandataries (contractors).
Many companies rely on Section 37(2) agreements to allocate responsibilities to contractors. While these agreements are important, they do not automatically remove the employer’s legal responsibility.
The client organisation must still ensure that contractors are:
- Competent
- Properly inducted
- Working according to safe systems
- Adequately supervised
Failing to manage contractors effectively can still expose an organisation to liability under the OHS Act.
The Importance of Effective Safety Management Systems
To successfully demonstrate compliance with OHS Act Section 37, organisations should implement structured safety management systems.
These typically include:
Risk Assessment Processes
Hazards must be identified and assessed before work begins.
Safe Work Procedures
Clear procedures should guide employees and contractors on how work must be performed safely.
Training and Competency Management
Workers must be trained and competent to perform their tasks.
Supervision and Monitoring
Supervisors must actively monitor work activities and intervene when unsafe behaviour occurs.
Contractor Management Systems
Contractors should be evaluated, inducted, and monitored to ensure compliance with safety requirements.
Organisations that implement these controls are far better positioned to demonstrate due diligence if an incident occurs.
The Key Lesson from OHS Act Section 37
OHS Act Section 37 reinforces an important principle in occupational health and safety:
Safety responsibility cannot simply be delegated or transferred.
Employers remain responsible for ensuring that systems, supervision, and controls are in place to protect workers and prevent incidents.
When something goes wrong, the focus shifts to whether the employer can demonstrate that they took all reasonably practicable steps to prevent the offence.
Organisations that rely solely on paperwork or agreements without implementing effective safety management systems often find themselves exposed when incidents occur.
Final Thoughts
Understanding OHS Act Section 37 is critical for employers, managers, and safety professionals responsible for workplace compliance.
The provision highlights the importance of proactive safety management, not just after incidents occur but throughout daily operations.
By implementing robust systems, ensuring competent supervision, and actively managing risks, organisations can not only improve workplace safety but also demonstrate compliance with the legal expectations of the OHS Act.
Learn More
If you want to understand the real implications of OHS Act Section 37(1)(a–c) and how the burden of proof applies after workplace incidents, watch our latest episode of Risky Business where we unpack this topic in more detail.
Visit our website to learn more about risk management, OHS compliance, and contractor safety solutions. See our UK Company
If your organisation needs support with risk assessments, contractor management, or OHS compliance, our team at SRM can help you build systems that protect both your people and your business.