Duties and Rights of the Employee
Chapter Forty-Five
Syllabus topic 3.1, "Concept, definitions, registrations and Duties of Employer and Employee"
Pages 319 to 324 of 597
In one line
An employee must take care of himself and others, report what is unsafe and not misuse safety equipment; and he has a right to be told about the risks and to have an imminent danger acted on.
In exam wording: section 13 of the Occupational Safety, Health and Working Conditions Code 2020 imposes seven duties on every employee at the workplace; section 14 confers the right to obtain information about health and safety, to make representations, and to raise an apprehension of imminent danger, with the Inspector-cum-Facilitator's decision on the existence of that danger being final; and section 15 forbids any person from intentionally or recklessly interfering with, damaging or misusing anything provided in the interest of health, safety or welfare.
Why the law has these at all
Because safety cannot be delivered to a worker; it has to be done with him.
The employer controls the plant, the systems and the money, which is why sections 6 to 9 put the heavy duties on him and on the people who supply him. But the employer is not on the shop floor at three in the morning. The person who first sees the frayed cable is the worker.
So section 13 gives the worker duties, and section 14 gives him the two things without which those duties are worthless: the right to know what the risks are, and a route for raising danger which does not end with his own employer.
And section 14(4) is the provision that makes it real. If the employer is not satisfied that the danger exists, he must nevertheless refer the matter forthwith to the Inspector-cum-Facilitator, whose decision shall be final. The worker's concern cannot be closed down by the person it is about.
Some words this chapter uses
Reasonable care is the care a prudent person would take in the circumstances. Standards here means the occupational safety and health standards declared under section 18. Health and safety representative is the worker representative through whom concerns may be raised. Safety Committee is the body constituted under section 22. Imminent means about to happen. Wilfully means deliberately; recklessly means with conscious disregard of an obvious risk.
Section 13: the seven duties of an employee
Every employee at a workplace shall:
| Clause | Duty |
|---|---|
| (a) | take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at the workplace |
| (b) | comply with the safety and health requirements specified in the standards |
| (c) | co-operate with the employer in meeting the employer's statutory obligations under the Code |
| (d) | if any unsafe or unhealthy situation comes to his attention, as soon as practicable report it to his employer or to the health and safety representative, and in a mine to the agent or manager referred to in section 67, the safety officers or an official for his workplace, who shall then report it to the employer in the prescribed manner |
| (e) | not wilfully interfere with, misuse or neglect any appliance, convenience or other thing provided at the workplace for securing the health, safety and welfare of workers |
| (f) | not do, wilfully and without reasonable cause, anything likely to endanger himself or others |
| (g) | perform such other duties as the appropriate Government prescribes |
Duties and Rights of the Employee
Two things to notice about the shape of the list.
Clause (a) is not confined to himself. The duty runs to other persons who may be affected by his acts or omissions, which includes visitors and other employers' workers on the same site.
Clauses (e) and (f) both require wilfulness. An employee who carelessly damages a guard is not within clause (e), which needs wilful interference, misuse or neglect. Compare section 15, below, which uses a different standard.
Section 14: the rights of an employee
Section 14(1), the right to know and to represent. Every employee in an establishment shall have the right:
- to obtain from the employer information relating to the employee's health and safety at work; and
- to represent to the employer, directly or through a member of the Safety Committee constituted under section 22 where one exists, regarding inadequate provision for protection of his safety or health in connection with the work activity; and
- if not satisfied, to the Inspector-cum-Facilitator.
That is a three step ladder and it is worth setting out as one: ask the employer, represent to the employer or through the Safety Committee, and if still unsatisfied go to the Inspector-cum-Facilitator. No Act repealed by this Code gave a worker a statutory right to information about his own safety.
Section 14(2), imminent danger. Where such an employee has a reasonable apprehension that there is a likelihood of imminent serious personal injury or death, or imminent danger to health, he may bring it to the notice of his employer, directly or through a Safety Committee member, and simultaneously bring it to the notice of the Inspector-cum-Facilitator.
Note the word simultaneously. He does not have to exhaust the employer first. The employer and the officer are told at the same time.
Section 14(3), the duty to act. The employer or any employee referred to in sub-section (1) shall take immediate remedial action if he is satisfied about the existence of such imminent danger, and send a report forthwith of the action taken to the Inspector-cum-Facilitator in the prescribed manner.
Section 14(4), the disagreement, and this is the key. If the employer is not satisfied about the existence of the imminent danger apprehended by his employees, he shall nevertheless refer the matter forthwith to the Inspector-cum-Facilitator, whose decision on the question of the existence of such imminent danger shall be final.
Duties and Rights of the Employee
Read sub-sections (2) to (4) together and the scheme is complete. If the employer agrees there is danger, he must fix it and report. If he disagrees, he must still refer it, and an independent officer decides, finally. The one thing he may not do is nothing.
Distinguish section 14 from section 89, taken in Module IV, which gives workers in a factory or mine the right to warn about imminent danger and to be protected in doing so. Section 14 is general and belongs to Chapter III; section 89 is specific to Chapter XI.
Section 15: the duty not to interfere
No person shall intentionally or recklessly interfere with, damage or misuse anything which is provided in the interest of health, safety or welfare under this Code.
Three differences from section 13(e), and they are the point of having both.
Who it binds. Section 13(e) binds an employee; section 15 binds no person, which is everybody on the premises.
The mental element. Section 13(e) needs wilful interference, misuse or neglect. Section 15 catches intentional or reckless interference, damage or misuse, so conscious disregard of an obvious risk is enough.
What is protected. Section 13(e) protects an appliance, convenience or other thing provided for the health, safety and welfare of workers; section 15 protects anything provided in the interest of health, safety or welfare under this Code.
A worked example
Iqbal works in a chemical plant. His employer has constituted a Safety Committee under section 22.
He notices a corroded valve. Section 13(d) requires him, as soon as practicable, to report the unsafe situation to his employer or to the health and safety representative.
He wants to know what the chemical he handles can do to him. Section 14(1) gives him the right to obtain from the employer information relating to his health and safety at work.
The employer's answer does not satisfy him. He may represent to the employer directly or through a member of the Safety Committee, and if still not satisfied, to the Inspector-cum-Facilitator: section 14(1).
He then forms a reasonable apprehension that the valve is about to fail and could kill somebody. Under section 14(2) he may bring it to the notice of his employer, directly or through a Safety Committee member, and simultaneously to the Inspector-cum-Facilitator. He need not wait for the employer.
Duties and Rights of the Employee
The employer agrees there is danger. He must take immediate remedial action and send a report forthwith of the action taken to the Inspector-cum-Facilitator: section 14(3).
The employer says Iqbal is imagining it. He must nevertheless refer the matter forthwith to the Inspector-cum-Facilitator, whose decision on the existence of the imminent danger is final: section 14(4). Disagreeing does not entitle him to do nothing.
A colleague ties back a safety interlock to work faster. That is wilful interference with an appliance provided for securing safety under section 13(e), and it is also intentional interference under section 15. If a visiting contractor's employee did it, section 13(e) would not reach him, because he is not an employee of that establishment, but section 15 would, because it binds no person.
Another colleague knocks a fire extinguisher off its bracket by accident and leaves it. Section 13(e) needs wilful interference, misuse or neglect, and section 15 needs intentional or reckless conduct. Simple carelessness is outside both, though it may engage clause (a), the duty to take reasonable care.
What this does NOT mean
The employee's duties do not reduce the employer's. Section 6 is unaffected by section 13, and the employer cannot answer a charge by pointing to a worker's carelessness.
Section 14(2) does not require the employer to be approached first. The employee may notify the Inspector-cum-Facilitator simultaneously.
An employer who disagrees is not free to ignore the complaint. Section 14(4) obliges him to refer it, and the officer's decision is final.
Section 13(e) does not catch carelessness. It needs wilful interference, misuse or neglect.
Section 15 is not confined to employees. It binds no person, so contractors, visitors and anyone else on the premises are within it.
Limits and criticism
Section 14 contains no protection against victimisation. A worker who takes a complaint to the Inspector-cum-Facilitator under section 14(1) or (2) has no express protection in the section against being dismissed or transferred for it, and the Code's general provisions are not directed to that.
The finality in section 14(4) cuts both ways. The officer's decision that there is no imminent danger is also final on that question.
"Reasonable apprehension" is undefined, so whether an employee's concern crosses the threshold is decided after the event.
Section 13(g) leaves further duties to be prescribed, so the list of seven is not closed.
Quick revision
- Section 13, seven duties: (a) reasonable care for himself and others affected; (b) comply with the standards; (c) co-operate with the employer; (d) report an unsafe or unhealthy situation as soon as practicable, in a mine to the agent, manager, safety officer or official; (e) not wilfully interfere with, misuse or neglect safety appliances; (f) not wilfully and without reasonable cause endanger himself or others; (g) other prescribed duties.
- Section 14(1): the right to obtain information on his health and safety, to represent to the employer directly or through the Safety Committee, and if not satisfied, to the Inspector-cum-Facilitator.
- Section 14(2): reasonable apprehension of imminent serious personal injury, death or danger to health may be raised with the employer and simultaneously with the Inspector-cum-Facilitator.
- Section 14(3): if satisfied, immediate remedial action and a report forthwith of the action taken.
- Section 14(4): if not satisfied, he shall nevertheless refer the matter forthwith, and the Inspector-cum-Facilitator's decision is final.
- Section 15: no person shall intentionally or recklessly interfere with, damage or misuse anything provided in the interest of health, safety or welfare.
Duties and Rights of the Employee
Test yourself
1. State any four duties of an employee under section 13. Any four of: taking reasonable care for the health and safety of himself and of other persons affected by his acts or omissions; complying with the safety and health requirements in the standards; co-operating with the employer in meeting his statutory obligations; reporting an unsafe or unhealthy situation as soon as practicable; not wilfully interfering with, misusing or neglecting any appliance or thing provided for health, safety and welfare; not wilfully and without reasonable cause doing anything likely to endanger himself or others; and performing such other duties as may be prescribed.
2. What are an employee's rights under section 14(1)? To obtain from the employer information relating to his health and safety at work; to represent to the employer, directly or through a member of the Safety Committee constituted under section 22, regarding inadequate provision for protection of his safety or health; and, if not satisfied, to represent to the Inspector-cum-Facilitator.
3. A worker fears an imminent danger. Must he go to his employer first? No. Section 14(2) allows him to bring it to the notice of his employer, directly or through a Safety Committee member, and simultaneously to bring it to the notice of the Inspector-cum-Facilitator.
4. The employer does not accept that there is any danger. What must he do? Under section 14(4) he shall nevertheless refer the matter forthwith to the Inspector-cum-Facilitator, whose decision on the question of the existence of such imminent danger shall be final.
5. Distinguish section 13(e) from section 15. Section 13(e) binds an employee and requires wilful interference, misuse or neglect of an appliance, convenience or other thing provided for securing the health, safety and welfare of workers. Section 15 binds no person, that is everybody, and catches intentional or reckless interference with, damage to or misuse of anything provided in the interest of health, safety or welfare under the Code.
Duties and Rights of the Employee
6. Does an employee's breach of section 13 excuse the employer? No. The duties in section 6 are the employer's own and are not qualified by the employee's conduct. Section 13 adds duties; it does not subtract them.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself for the same subject.