Clothing giant Truworths turned to court after it was slapped with notices for allegedly contravening the Occupational Health and Safety Act (OHSA) as it did not, at two of its stores, provide employees at its cash desk with seating facilities. They were ordered by the chief inspector to provide seats with back rests at the two outlets.

But Truworths turned to the Johannesburg Labour Court to have this directive overturned, as it reasoned that the employees at its cash desks do not perform their work seated. According to Truworths, there are adequate seats available for these workers in their shops when they take a break from the cash desk.

According to Truworths, the chief inspector failed to determine whether any or all of the employees at either of its stores normally performed their work standing up, nor whether their work could effectively be performed while sitting. Another ground for appeal was that the inspector never established whether it was reasonably practicable for the employer to provide seating for any employees employed at the stores.

It was argued on behalf of Truworths that the contravention notices were incorrectly or unlawfully issued by the inspectors and should be set aside. The inspectors visited two of Truworths’ stores located in Mpumalanga. They subsequently issued the clothing retailer with a contravention notice in which it was said that Truworths had failed to comply with the facilities regulations.

Truworths was directed to “provide seats with back rests at the cash desk, with the aim of “opportunity sitting” - to permit an employee whose work is performed while standing, the opportunity to sit down when possible. The retailer said it is in compliance with the law. It explained that the facilities regulations make it clear that the provision of seats is only necessary where it is “reasonably practicable”.

It is not practicable to have seats behind the cash desks, not only because staff are not able to properly serve customers from a seated position, but to have chairs behind the desk will cause an obstruction to staff being able to move freely behind the cash desk area, Truworths said. It told the court that they do provide seating facilities elsewhere in the workplace for staff to use and they are therefore in compliance with the law.

The labour court, in ruling in favour of Truworths, said although the primary focus of the OHSA is to ensure the health and safety of employees, the interests of the employer cannot be completely discounted. “To simply describe, it is not about what is the best way the health and safety of the employees can be achieved. It is about whether, feasibly considered, the health and safety of the employees can be ensured by what has been implemented by the employer,” the court said.

It was found that the safety officers misconstrued the law. “What they did was to dictate to the appellant where seating had to be provided - behind the cashier's desks.” The court added that it was never considered whether this was practical. The officers also did not consider that there are seating elsewhere in the shops for the workers to sit down when they needed a rest.

In upholding the appeal, the court said the inspectors did not seem to understand what the duties of the cashiers actually were, and gave unfounded directions based on a misapplication of the facilities regulations.

seating

Court rule favours Truworths over seating regulations for cash desk employees