A burning question July 2017

By LAUREN SALT AND PENJANI MSETEKA, Published in Environmental - Employment Law

With the recent factory fire at the Transnet-owned wax-production facility in South Durban, employers are reminded how quickly a burning building can translate into tragedy and destruction.

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The fire broke out on Friday, 24 March, and continued to rage for three days. Firefighters allegedly stated that the fire hydrants on-site had not been serviced and were inoperable or ineffective. The question arises as to whose job it was to service the fire-safety equipment, and what the ramifications of non-compliance would be.

Under the common law, employers have a duty of care towards their employees, this includes ensuring workplace safety. This obligation, along with others, has been codified in the Occupational Health and Safety Act (85 of 1994) (OHSA). With regard to fire safety, both OHSA and the National Building Regulations and Building Standards Act (103 of 1977) require stringent compliance with various fire safety requirements. Failure to adhere to these may result in either the imposition of a fine or imprisonment up to 12 months.

To avoid the harsh consequences of non-compliance, there are a plethora of considerations that employers and building-owners must take into account. Fire safety, though often ignored, requires serious consideration of evacuation plans, building assessments, safety-equipment maintenance; all of this often results in capital investment.

OHSA places a positive obligation on employers to provide a healthy and safe environment for employees. The manner in which the safety directives might be implemented is canvassed in the Environmental Regulations for Workplaces, 1987 which are annexed to OHSA.

"Everybody out!"

One of the key aspects of fire safety is the establishment and implementation of an evacuation plan.

The Environmental Regulations provide information on essential components for planning and implementing an evacuation.

Environmental Regulation 9(1) states that to expedite the evacuation of a workplace in case of fire, every employer will ensure that:

a) any emergency escape door from any room or passage or at a staircase will, as far as is practicable, be hung to open outwards;
b) every door of a room in which persons may be present, and every door of a passage or at a staircase serving as a means of exit from such room, will be kept clear and capable of being easily and rapidly opened from inside to ensure quick and easy evacuation;
c) the requirements of (a) and (b) will also be complied with in respect of the outer escape exit from the workplace;
d) staircases and steps will be provided with substantial handrails;
e) staircases intended to be used as fire escapes will:

i) be constructed of noncombustible material;
ii) be kept clear of any material or other obstruction; and
iii) not terminate in an enclosed area;

f) staircases, passages and exits intended for escape purposes will be of a width and of a gradient that facilitates the quick and safe egress of the number of persons intended to make use of them; and
g) having regard to the size, construction and location of a workplace, the number of persons, and the activity, the workplace is provided with at least two means of egress situated as far apart as is practicable.

Further to the Environmental Regulations, the Building Standards Act provides standards to which owners and occupants must adhere.

SANS 10400, which is included in the Building Standards Act, stipulates that in terms of fire-safety precautions:

"[a]ny building shall be so designed, constructed and equipped that in case of fire –

  1. the protection of occupants or users, including persons with disabilities, therein is ensured and that provision is made for the safe evacuation of such occupants or users;
  2. the spread and intensity of such fire within such building and the spread of fire to any other building will be minimised;
  3. sufficient stability will be retained to ensure that such building will not endanger any other building: Provided that in the case of any multi-storey building no major failure of the structural system shall occur;
  4. the generation and spread of smoke will be minimised or controlled to the greatest extent reasonably practicable; and
  5. adequate means of access, and equipment for detecting, fighting, controlling and extinguishing such fire, is provided."

In case of fire, break glass...

In the provision of fire-fighting equipment, the Environmental Regulations highlight that employers must pay attention to the size, construction and location of the workplace, and the amount and type of flammable articles used, handled or stored on the premises. These factors directly impact the type of fire-extinguishing equipment that will be needed.

In addition, in terms of the Environmental Regulations, an employer must provide an adequate supply of suitable fire-fighting equipment in strategic locations or as may be recommended by the fire chief of the local authority concerned, and the equipment will be maintained in good working order. SANS 1475 of the Building Standards Act states that fire extinguishers must be properly serviced and maintained; it also indicates specific maintenance intervals for various types of equipment to ensure timeous maintenance.

In addition to fire-extinguishers, it is equally important to ensure that fire hydrants are properly maintained and serviced. If an employer's building is at least 12m high or the building has a floor area that is greater than 1000m2 then SANS 10400-T dictates that the building must have a fire hydrant and a booster connector. For buildings that exceed 30m in height and have a basement storey which exceeds 500m2 there must be an automatic fire-fighting system such as automated sprinklers, which must also be kept in good working order.

Approaching a fire with incorrect or ill-maintained fire extinguishing equipment can have dangerous consequences. Businesses should satisfy themselves that they comply with the relevant provisions and standards of OHSA and the Building Standards Act. Specifically, they should ensure that they have adequate fire detection systems and the correct type andquantityofextinguishers,whicharemaintainedonaregularbasis.

Can employers afford to be burned?

In order to ensure that these elements are properly implemented, employers must be willing to part with funds. For most employers, obtaining and maintaining fire-fighting equipment is where the majority of the capital investment will lie. Although costly in the short run, proper adherence to safety regulations and rules could save the company a lot of money in the future. This is especially relevant in the context of insurance. A declaration to adhere to fire-safety obligations would constitute a warranty, therefore, failure to comply with these obligations would constitute a breach of the insurance agreement, which would allow the insurer to repudiate any claim for resultant damage.

Employers should think twice before ignoring or flouting fire-safety regulations, not only because of the consequences relating to loss of life or property in the event of an incident but also because of the statutory ramifications of a hefty fine or imprisonment.

A throwaway attitude may lead to runaway consequences!

Salt is a Senior Associate and Mseteka a Candidate Attorney, Employment practice Baker McKenzie (South Africa).