FACING A DISASTER – SOME CONSIDERATIONS

“It must seem to many of us that the world has indeed gone crazy, and nothing will ever be the same again. Covid, riots and unrest, floods and now the fire of all fires; this one on our doorstep. It was surreal being on site at Richards Bay for the first two weeks of October. We remember the frenzy of trying to control the initial blaze, and then the panic when the wind changed and strengthened and finally the feeling of utter hopeless as Bayfibre caught fire after hours of trying to protect that chip pile. Then followed a period of 12 days of making sure TWK and Foskor did not catch fire, and slowly but surely getting our three stockpiles under control and finally out.” Danny Knoesen NCT General Manager.

Unfortunately, this was our reality for the first few weeks of October and the reality of the last few years. Taking some learnings from our experience, we set out below some key aspects and areas to consider, in preparing for and dealing with a crisis or disaster.

Health and safety of employees, customers, members of the public, stakeholders etc.

Section 8 of the Occupational Health and Safety Act imposes a general duty on employers to ensure a safe working environment. Section 9 of the Act imposes a further general duty on employers towards persons other than their employees, including members of the public, customers, agents, stakeholders etc. it states that “Every employer (including the State /Government) shall conduct his undertaking in such a way 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”.

This even more in the case of a disaster. The very same rules and regulations you have in place regulating workplace health and safety in your day-to-day operation, continue to apply. Simply put, just because there is a disaster, does not mean your standard workplace rules go out the window. You will also need to carry out a new risk assessment to identify new hazards and risks in the workplace arising from the disaster. Not only may inspections be carried out on what was in place before the disaster and to manage the risk and hazards, but also on what was put in place following the disaster within reason to ensure that the workplace is safe. This would apply to any disaster management interventions, mitigation efforts, clean-up operations etc. This may involve alerting your health and safety committee and ensuring they are made aware of the situation and participate in the process going forward.

Remember your organisation will be under the spotlight following any disaster and so it is critical to ensure compliance with all aspects of the Act, your own workplace risk assessment and your policies and procedures put in place to manage your workplace place health and safety. Failure to ensure compliance may result in a fine or imprisonment depending on the severity of the contravention.

Environmental reporting and compliance

Section 30a and 30A of the National Environmental Management Act (NEMA) deals with the control of emergency incidents, provides that the Department, in an emergency, has the authority to direct a person to carry out a listed or specified activity, to prevent or contain the emergency or to prevent, contain or mitigate the effects of the emergency.

Section 30 requires several reports to be filed with various State role-players including all persons whose health may be affected by the incident, and within specified timeframes.

In this section “incident” means an unexpected sudden occurrence, including a major emission, fire or explosion leading to danger to the public or potentially serious pollution of or detriment to the environment, whether immediate or delayed. Some of the reporting obligations need to be complete within 14 days of the incident, so do not delay in completing and submitting such reports.

S30 further empowers the relevant authorities to issue a directive in terms of which the responsible person must undertake specific measures within designated timeframes to comply with NEMA and in managing and/or addressing the emergency incident.

A person who contravenes or fails to comply with NEMA is guilty of an offence and liable on conviction to a fine not exceeding R1 million or to imprisonment for a period not exceeding one year, or both.

Employees and employment issues

Disaster has struck and now what to do with your employees. This is one of the toughest decisions to make and which is impacted by several considerations, such as, affordability, loyalty, appreciation, and practical need. The options available for dealing with the workforce will depend largely on the extent of the disaster and the impact on your business. The first step is to carry out as assessment of the nature and impact of the disaster on your business, and the expected duration. This will dictate the approach taken with the workforce. It may be that you require employees in the short-term for the cleanup, for example, but longer term while the rebuild is happening, your labour requirements may be less. In the event that the disaster renders your business inoperable, full-scale retrenchments may be in order. Your approach may also need to adapt with the change in circumstances as you move through the phases of the disaster management process.

Some options to consider include:

????????? Placing employees on short time

????????? Varying employees’ terms and conditions and having employees carry out different roles and responsibilities.

????????? Shift rotation and different working time arrangements.

????????? Eliminating overtime and work on weekends.

????????? Lay-off.

·???????? Retrenchments (including voluntary retrenchment)

????????? Early retirement

Consultation with your employees and their Trade Union (if applicable) will be critical to the effective implementation of such schemes and management tools. This is a time for all parties to work together and for the good of business sustainability.

Commercial considerations

Assess your ability to meet your contractual obligations and demands from your customers, clients, suppliers, contractors etc. You will need to review your contracts and current arrangements for any pitfalls before making any decisions. A declaration of force majeure may assist you in the interim and until you are able to determine the full extent of the disaster, the future of your business and your ability to satisfy the contractual obligations. It may not be a long-term solution and needs to be approached carefully. We would recommend seeking legal advice before implementing force majeure as the consequences may be serious for your business. Document any discussions with customers, contractors, suppliers and record any special concessions granted and timeframes. Managing expectations will be critical and you want to be as clear as possible with stakeholders.

Insurance

Contact your insurers or brokers as soon as possible. This is to ensure that your claim gets the attention it needs to be efficiently and speedily processed. You may also need to make decisions that may have an impact on your claim, and you do not want to do anything that will negatively affect the process. Be clear on what your insurance covers – do you have business interruption cover in place, are you covered for stock loss and is this cover sufficient, the same in respect of plant and equipment and assets.

Also check your warranties – are you compliant? It is critical to ensure that you have reviewed your insurance policy and complied with any warranties or undertakings contained therein. Also review your policy for additional extensions like SASRIA, customer extensions and additional cover you may want to claim on mitigating the effects of the disaster. This should be done annually to ensure that you keep up with the changing circumstances of a dynamic work environment.

Financial considerations

Have you made provisions for a disaster or emergency incident? Depending on the nature of your business, it would be prudent to keep a cash reserve for emergencies. This will provide you with access to funds pending the payout of the insurance money and should you need to engage in disaster management activities or containment measures. It may also provide you with some breathing room and time to reflect on the situation before making any big decisions.

It may be worthwhile exploring options and facilities with your bank which could be accessed if required.

Public relations and media management

We cannot over-emphasise the importance of the role social media and the broader media play in such incidents and the fallout if managed badly, especially when fake news starts making the rounds. Managing public perception and reactions in a time of crisis is a difficult and sensitive business and your approach needs to be given careful consideration. With the reach of social media and the focus on the environment, organisations must be proactive in managing the disaster and be seen to be taking active steps in taking responsibility for the clean-up and re-establishment of the area and surrounds. It may also be to an organisation’s benefit to play open cards with the public and to embrace the media, and to seek assistance from the community. A disaster that affects an employer in an area ultimately has an impact on the whole community.

Being able to respond effectively and efficiently during a disaster or crisis is a must for any organisation these days and the ability to adapt to changing circumstances critical. Having a solid disaster management plan in place is key and educating your management team and employees on that plan will ensure that your organisation survives the disaster and eventually thrives from the adversity of the situation.

This article should not be used as legal advice as it is merely an opinion piece and for information purposes.