Without realising it, most organizations have legal appointments in place either to satisfy the auditor, a certification institution, or the inspector. Very few auditors or inspectors will verify the real value of appointments. However, letters of appointment that are not worth the paper they are written on are as good as not having such an appointment at all.
An appointment is the designation of OHS Act-related legal duties. The assignee is the person who has to take ownership of the duties assigned to him or her. Persons who designate duties have to understand that the managerial duty remains with them with regard to appointments. It is therefore vitally important to inform an assignee as to how he or she will be managed in terms of the appointment.
There are primarily four elements to be considered when legal appointments are being made.
- Duties: Ask the question: does the assignee fully understand the scope of his or her duties? Do the persons who designate their duties fully understand what was designated and what not? If it is assumed that the designator is clear about what is to be designated, then the mentioned duties have to be discussed in detail for the assignee to fully understand it. Opportunity should be granted for assignees to become conversant with the content of the letter of appointment in question before they sign on the dotted line. It is also important to realise that appointments not being managed, i.e. feedback being given at agreed upon frequencies, the format of feedback, etc., are incorrect. Managers who do not ensure that responsibilities are fully understood and properly managed, can only blame themselves if assignees claim that they have not been informed, or that they did not know.
The reality is that most managers do not draft letters of appointment themselves, but obtain similar copies externally and only make slight changes to suit the needs of their organisation. This is because such managers think that a letter of appointment needs to have a specific format and therefore “adopt” standardised appointments. The result is that such managers do not know what they assign, and therefore not what responsibilities they retain. Sadly, managers do not always manage appointments, because they do not know what to manage.
- Legal stipulations with regard to the appointment: One does not assign persons for the sake of assigning them or because the OHS Act requires so. The main purpose of any appointment is that the assignee has to ensure that the legal duties of the person by whom he or she is assigned, are complied with. Managers use loose wording such as “make yourself conversant with the requirements of the OHS Act and its regulations” without establishing whether the assignee has made him or herself conversant therewith. To appoint a person that does not understand which legal requirements are relevant to his or her appointment, is as good as not having appointed a person at all.
- Legal Liability: It is every person’s right to know how he or she could be held liable in terms of the OHS Act and the common law. Not all managers know the extent of their own liability let alone the person appointed by them. One cannot expect a person to take ownership of a letter of appointment unless he or she understands the full implication of his or her legal liability.
- Viability: Managers have to ensure that the duties stipulated in a letter of appointment are practical and achievable for the assignee. Managers must not assume that the assignee can execute all the mentioned duties, but rather listen to the opinion of the assignee with regard thereto.
It is very important for all four aspects to be verified when designating a letter of appointment. The only persons to blame for improper appointments are managers, who assign their duties for the sake of assigning them without realising the purpose of a letter of appointment and how it should be properly managed.
Author: Johan Louw
Director, Senior Consultant: Johan Louw & Associates (Pty) Ltd