January 2019 Newsletter

Safety in Restaurant Play Areas

– When looking at the Roles and Responsibilities for caring for children at restaurants who provide play areas – it is important that we take cognisance of general safety guidance and regulations published under the Occupational Health and Safety Act –

The OHS Act (1993) clearly states as per Section 8, the general duties of employers to their employees as follows:

  • Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

In Section 9, it highlights the general duties of employers and self-employed persons to persons other than their employees as follows:

  • Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

Parents and Guardians remain the prime carers for any children within the establishment, and it is clearly their responsibility to ensure the safety of their own children.

So, clearly an onus is placed on the owner/manager of the establishment to ensure that steps are in place and that no harm comes to their guests, either within the

eating area of the restaurant, or, if provided, in the play area set aside for children.

The Restaurant Association of South Africa (RASA) offers clear guidance and has established Policies to ensure that its members adhere to a clear code of practice.

We must ensure that certain criteria are met, and that owners/franchisees meet minimum requirements.

  1. That play areas are of a minimum size;
  2. They must be enclosed with a latchable and lockable one-way entry gate;
  3. A register to record entry and exit movement of people;
  4. That the equipment is safe and meets SABS approved standards and specifications;
  5. CCTV for monitoring the play area must be available;
  6. Trained child minders must be in attendance;
  7. The minders must have both First aid and CPR certification;
  8. Suitable soft-landing flooring must be installed;
  9. Suitable and sufficient hygiene facilities must be available, i.e. hand washing, disposable wipes and paper towels;
  1. Areas need to be disinfected on a daily basis;
  2. The equipment must be maintained;
  3. The necessary signage and disclaimers are to be displayed,

Although the policy is not law, RASA feels that the policy makes for good restaurant practice and for patron and public awareness and encourages participation of all members that have Play Safe areas.

The purpose of the Policy is to:

  • To define the parameters that cater for a safe environment for the set-up of kids play areas within restaurants;
  • To define the responsibilities of the restaurant, play area attendants parents and kids;
  • To uplift play areas at restaurants to a minimum safety standard;
  • To educate the public on Disclaimers;
  • To improve the quality and safety of kids in all restaurants;
  • To ensure all play area attendants are adequately trained and available to restaurants offering play areas to kids.

For further information and guidance on this important subject please contact Daryl  Andrews from Safety Net Consulting on 082 560 2774. 

–  Section 9(3) and (4) of the Constitution of South Africa prohibits any person to discriminate against any other person. This means that every person has a constitutional right not to be discriminated against –

Section 187(e) of the Labour Relations Act [LRA] as well as the Employment Equity Act [EEA] in section 6 prohibits unfair discrimination.

One can distinguish between direct and indirect discrimination as well as intentional or unintentional.

One of the categories include under discrimination is pregnancy. A woman may not be dismissed in any circumstances merely because she is pregnant. However, employers are not precluded from dismissing an employee who is pregnant for operational requirements, provided that the employer can show that there was indeed a valid economic or related reason.

A woman on maternity leave is also not immune from dismissal.

Not all employers will jump of joy when an employee informs them that she is pregnant. Despite the employer’s feelings, an employee is entitled to 4 (four) months unpaid maternity leave as stated in section 25 of the Basic Conditions of Employment Act (BCEA).

Maternity leave may be taken at any time from 4 (four) weeks prior to the expected date of birth of the child (unless a medical practitioner or a midwife advices otherwise) and she may not return to work for 6 (six) weeks after the birth of her child, unless (same as above, unless a medical practitioner or a midwife advices otherwise).

If an employee is discriminated against, because of her pregnancy, this type of discrimination will fall under automatically unfair discrimination [sec 187(e) of the LRA] and the employee can get up to 24 (twenty four) months’ salary as compensation.

In Wallace v Du Toit [2006] 8 BLLR 757 (LC) the applicant was appointed as an au pair to care for her employer’s two young children. After two years, the applicant fell pregnant, and her employment was terminated. The applicant

claimed that he had made it clear at the pre-employment interview that the applicant would no longer qualify for employment if she had children of her own, as her loyalties to his own children would be divided, and that the employment relationship had lapsed by virtue of a “resolutive condition” having been satisfied. The applicant admitted that she and the respondent had discussed her marital status before she commenced employment, but denied that she had been told that being childless was a condition of employment. The applicant sought compensation under the LRA for what she claimed was an automatically unfair dismissal and damages under the EEA.

It follows that such a dismissal is automatically unfair in terms of section 187(1)(e) of the LRA. The respondent’s justification that this was an inherent requirement of the job, even if it was sustainable, which in my view it is not, cannot in law provide a legal justification. The section is clear. A dismissal where the reason is related to the pregnancy of the employee is automatically unfair and cannot be justified.

It is plain that there has also been unfair discrimination in terms of section 6(1) of the EEA since it certainly cannot be said

that there is an inherent requirement of the job of an au pair that the incumbent must not be pregnant nor a parent. This is the kind of generalisation or stereotyping that evidences the unfairness of the discrimination. The focus must be on whether the impact of the discrimination was unfair.

If the main reason for the dismissal is the employee’s pregnancy, the employer cannot rely on an ancillary reason, e.g. the employee’s alleged deceit in not disclosing her condition. Conversely, a pregnant employee cannot rely on her pregnancy as a defense against conduct that constitutes a disciplinary offence. 

Racism in the workplace has been a big issue in the labour force for some time. Although many employers see this as an extremely serious offence which is nearly always investigated and handled as soon as it is reported, there seems to be a lack in the understanding regarding false accusations and claims of racism and how these claims should be handled.

When looking at recent case law relating to racism and false claims of racism the Labour Appeal Court (LAC) warned that it would not tolerate any form of racism. In the case of City of Cape Town v Freddie & Others (2016) 37 ILJ 1364 (LAC), the employee stated that his manager was “worse than Verwoerd” after the manager instructed the employee to seek assistance from a fellow employee with regards to compiling and finalising a proper report. The LAC found that the employee had made racist comments without justification or justifiable cause as there was no evidence to substantiate his claims and upheld the sanction of dismissal. In other cases such as, SACWU & another v NCP Chlorchem (Pty) Ltd & others (2007) 28 ILJ 1308 (LC) falsely accusing a superior of being racist has been held to be just as deplorable as racism and justified dismissal of an employee.In the case of Crown Chickens (Pty) Ltd t/a Rocklands Poultries (2002) 23 ILJ 863 (LAC),the Labour Court indicated that there is a zero tolerance approach to any comments or conduct that might have racist connotations, and acting in contravention of this justifies dismissal. �

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