When cleaning becomes dangerous – product liability claims

People are often told by DIY advocates how easy the next project is and where to find even the most weird and wonderful ingredients, tools or chemicals. Subsequently these days hardware stores stock a wide variety of what seems to be, at face value, consumer friendly household cleaners that will solve all unsightly or foul smelling problems in a few simple steps you can do yourself, such as drain cleaners … until these easy steps literally blow up in your face and you need to urgently find out exactly what chemicals this product contain. Only to be faced with a complete lack of contact details or any useful information on the product’s label. In cases of chemical burns time is of the essence and may even a few minutes’ delay in treatment result in permanent scarring and damages. The importance of being able to immediately determine the chemical compilation of a product and to contact the manufacturer can thus not be emphasised enough.

Previously in terms of the common law one could only institute a claim against the manufacturer, retailer or distributor of the product if there was a contractual relationship between you and them which agreement provided for such a claim, and if one could prove negligence on the part of the supplier or manufacturer.

Luckily this situation was changed by the enactment of the Consumer Protection Act 68 of 2008 (CPA) on 1 April 2011. Section 61 of the CPA now provides that the producer, importer, distributor or retailer of goods may be held liable (jointly and severally) for any harm or damages caused wholly or partly as a result of:

  • the supply of unsafe goods;
  • a product failure;
  • defect or hazard in the goods;
  • inadequate instructions or warnings provided to the consumer pertaining to any risk associated with the use of the goods regardless of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer.

Section 53(1)(c) of the CPA defines “hazardous” as a characteristic that has been identified as, or declared to be, a hazard in terms of any other law or a substance that presents a significant risk of personal injury to any person or damages to property when such goods are utilised. Whether or not goods poses a significant risk will require a value judgement by the court having regard to various factors.

Further to the above “unsafe” in terms of Section 53(1)(3) of the CPA means that due to a characteristic, failure, hazard or defect, particular goods present an extreme risk of personal injury or property damage to the consumer or to other persons. Although Section 61(1)(c) of the CPA provides for liability based on “information defects” such as inadequate warning or usage instructions, this section provide no further guidance in terms of how the courts must assess the adequacy of warning labels. Under these circumstances the court will need to resort to the application of a reasonability test.

The adequacy of instructions and warnings accompanying a product were considered in the Australian case of ACCC v Glendale Chemical Products 40 IPR 619 (1998) (Austl. Fed. Ct.) in which a Plaintiff sustained chemical burns while using a drain cleaner (caustic soda). The caustic soda reacted with the warm water within the shower drain, burning the Plaintiff’s face and eyes. The court considered whether the instructions and warnings accompanying the product adequately warned consumers of the risk of injury if the product comes into contact with hot water in a drain. The court held that the manufacturer was well aware of this risk attendant to pouring the caustic soda down a drain containing hot water and that consumers are entitled to be warned of risks in respect of use to which goods “might reasonably be expected to be put”. Therefore the manufacturer ought to have included a specific warning to this effect. Applying this approach in the South African context, it is arguable that the use to which goods “might reasonably be expected to be put” should also take into account the potential misuse of products due to vulnerable consumers with low technical knowledge of the specific product, misunderstanding or misinterpreting product instructions or warnings.

Considering the above as well as the uniqueness and complexity of product liability claims in general it is clear that an in-depth investigation into the origins of the product and the supply chain will be necessary to accurately identify the defendants for a product liability claim and that official product testing will also be necessary to prove the required standards that a product must meet as set out by the South African Bureau of Standards (SABS).

Accordingly please keep an example of the product, including a clear legible label and monster of the content or substance, for analyses and investigation when faced with the unfortunate event of sustaining physical injuries as a result of using any product.

By Marietjie Botes
marietjie@dyason.co.za

The remedy of reinstatement

With reference to the matter of Mashaba v South African Football Association (J122/17) [2017] ZALCJHB 53 (21 February 2017).

The Labour Court dismissed an application brought by “Shakes” Mashaba, the former head coach of the National Football team against the South African Football Association (“SAFA”) wherein Mashaba asked for an order preventing SAFA from appointing a replacement until his unfair dismissal dispute is resolved by the CCMA.

Mashaba was dismissed on 21 December 2016 following a disciplinary hearing where he was found guilty of gross misconduct, insubordination, violating SAFA’s communications policy and bringing SAFA into disrepute after a very public emotional outburst from Mashaba on television. Mashaba lodged an unfair dismissal dispute with the CCMA. This disputed was to be arbitrated on 7 – 9 March 2017. Mashaba believed he had a good prospect of winning and he requested SAFA to hold off on appointing his replacement. His request was turned down.

Mashaba then brought an urgent application to the Labour Court for temporary relief pending the outcome of CCMA proceedings. His concern was that, even if he is successful at the CCMA, it would be unlikely that he would be entitled to be reinstated if SAFA had already replaced him with another head coach. The court agreed that the application was urgent and the application was heard on 14 February 2017.

Section 193 of the Labour Relations Act provides for reinstatement as primary remedy for unfair dismissal, unless: the employee does not wish to be reinstated or re-employed or the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable or it is not reasonably practicable for the employer to reinstate or re-employ the employee or the dismissal is unfair only because the employer did not follow a fair procedure. A Commissioner or the court is obliged to order reinstatement unless one of the aforementioned conditions applies. Mashaba’s argument was that SAFA would argue that his reinstatement is not reasonably practicable due to another head coach already being appointed and he would be deprived of the remedy of reinstatement he believed he deserved. The court found that SAFA would not be absolved from having to reinstate Mashaba merely because doing so could present a problem. The term “not reasonably practicable” does not mean inconvenient or impractical. The court referred to the Labour Appeal Court judgment of Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM obo Masha & Others (2016), wherein it was stated that the term “not reasonably practicable” referred to the feasibility of reinstatement. Reinstatement must therefore be shown to be not “reasonably possible in the sense that it may be potentially futile”.

The court further found that an employer may not thwart a dismissed employee’s bid for reinstatement by simply replacing him with another employee. The employer has to consider this and take suitable steps in its contract with the replacement, before replacing an employee who challenges his dismissal. The employer must realize that it runs the risk that it will be faced with the possibility of terminating the relationship with the replacement or of trying to renegotiate the replacement’s contract if the former incumbent is reinstated. In other words, an order for reinstatement pays no heed to other contractual arrangements that might have come into existence between the employer and a replacement. This is of no concern to the arbitrator or the court and the employer is left to its own devises to sort out the mess it finds itself in having employed someone and then being ordered to re-engage someone in the same position. Consequently, the court found that even if SAFA did appoint a new head coach before CCMA arbitration was concluded, the appointment of new head coach would not be able to protect SAFA against an Order of Reinstatement by CCMA. Mashaba would therefore not be deprived of his right to reinstatement.

The court has the power to enforce the terms of employment contracts but not to prevent parties from entering into employment contracts, so SAFA was free to appoint a new head coach. This is however not a factor that should influence the arbitrator in deciding on reinstatement.

It is important to note that Mashaba’s right to reinstatement did not translate into a right to keep his former position vacant merely on the assumption that he would be reinstated by the CCMA.  His right to reinstatement will only arise if it is established that his dismissal is found to be substantively unfair. The court found that if it were to grant Mashaba’s application, it would effectively be second-guessing the outcome of the arbitration proceedings, which is not for the court to evaluate in the context of urgent motion proceedings.

Mashaba’s application was accordingly dismissed with no order as to costs.

By Lizelle Marx
lizelle@dyason.co.za

Employee or contractor? Courts will give effect to contractual terms

With reference to the matter of Vermooten V Department of Public Enterprises & Others (JA91/2015) (2016) ZALAC 63, I will attempt to declutter a litany of conjecture that marred the legal waters, eventually leading the appellant to adopt a brave posture based on a wrong legal premise. In this regard, there is many a slip betwixt the cup and the lip. For the appellant, as will be revealed herein, pyrrhic victories are nothing but a sham. Labour law may be a tricky affair, but asking and answering the simple questions may lead to desired outcomes thereby diverting legal quagmires.

The facts revealed that the Department of Public Enterprises (hereafter DPE) was required to fill a post of Director: Aviation and as such advertised same. DPE had envisaged a five year contract for the position. As one can imagine, qualifying individuals applied and amongst them was one Mr. Vermooten (hereafter Vermooten). At the interview, Vermooten seemed to have wowed and impressed the panelists and as such it appears he was the DPE’s favorite. They offered him a five year contract as advertised, the position of Director: Aviation, but; there was a glitch. Vermooten was not content with the salary on offer, he regarded same to be low and so negotiations ensued. In the same breath, the DPE could not offer him a higher remuneration on a higher salary scale against their PERSAL system.

The DPE, however, was prepared to be creative in circumventing the internal PERSAL system glitch in order to procure the services of Vermooten. However, it appears Vermooten was au fait with the workings of government and he presented a “better” solution to the DPE. He suggested that in solving the remuneration issue, that his position be regarded as that of a specialist. The DPE subsequently considered his suggestion and later provided him with an offer, a twelve month contract as a Specialist Aviation Consultant instead of the erstwhile five years contract. The latter was a welcomed deviation. As a result, Vermooten had to submit Invoices to the DPE as is the norm with Consultants. Vermooten accepted the terms of the “new” contract.

Upon expiration of the first twelve months, the DPE amended the contract in order to expire some three years and five months later; that date being the 31st March 2011. During March 2011, the DPE informed Vermooten it was not about to renew the contract. This is where the bandwagon’s 22 inch mag-rims came off. Disgruntled with this state of affairs, Vermooten approached the Bargaining Council claiming he had been unfairly dismissed. The question that would ordinarily arise is “was Vermooten an employee in terms of section 200A of the Labour Relations Act 66 of 1995, as amended?” The latter was raised by the DPE at the Arbitration but sadly never pursued in terms of adducing exculpatory averments or evidence in support thereof. But, Vermooten relied thereon. Eventually, the Arbitrator ruled in favour of Vermooten. The latter decision was thereafter reviewed and set aside by the Labour Court. Unsatisfied with this ruling, Vermooten appealed to the Labour Appeal Court, the decision of which is the subject of this article.

The Court held that the DPE considered two options, one being to offer Vermooten a contract as an employee or as a consultant on a different contractual basis. As we came to know, Vermooten declined the former option because of the remuneration scale which was too low. Seeing that they were keen to acquire his services, they accepted his suggestion to onboard him as a consultant and at a higher rate than was applicable. This is where the case turned in my view. The DPE concluded the contract for purposes of acquiring Vermooten’s skill and this contract was not premised on an illegal act but it seems to have relegated Vermooten out of protection of section 200A of the Labour Relations Act. As a result he could not rely on it but on his executed contract which he himself brought about.

The court further considered the argument on behalf of the appellant that there was no need to link the appellant to a post within the DPE, he could simply be declared an employee. The appellant further made submissions based on his relations within the DPE and relying heavily on section 200A. The court held that it is not legally permissible for the DPE to have an employee in the Department without a rank and prescribed remuneration level. Having considered all surrounding circumstances, it was evident that the parties decided to structure their contractual relationship with a purpose to exclude an employment relationship. In line with the principle of freedom of contract, the latter was legally permissible. The court argued that Vermooten sought to be classified an employee, a position that could not be achieved at the beginning of the negotiations with the DPE. Both parties were found to be relatively equal in their bargaining positions and if they chose to elect one relationship over another; that choice ought to be respected by the courts.

The court held that the contractual agreement was valid and therefore in the absence of any overriding policy considerations, neither a tribunal nor a court may ignore its terms.   It was on that basis that the court held the appeal be dismissed with costs.

By Phalen Selibi
phalen@dyason.co.za