“Growth is never by mere chance; it is the result of forces working together” – James Cash Penney
In light of the infamous riots and looting in South Africa and the crime that is constantly on the rise, employees might feel the need to carry their weapons for self-defence, and possibly, to protect those around them.
An important aspect to consider is that, on the side of the employer, one must be mindful that they are bound by the Occupational Health and Safety Act 85 of 1993 (OSHA), which clearly states that it is the employer’s duty to provide a safe working environment to its employees, as well as the Constitutional Right of individuals to be free from all forms of violence and intimidation. It is worthy to note that the Constitution of the Republic of South Africa, 1996 does not recognise the “right to bear arms.”
The burning question – would carrying a firearm contribute, if used correctly, to the safety of employees, or not?
The Dangerous Weapons Act 15 of 2013 (DWA) regulates the possession of weapons that will be regarded as dangerous, by prohibiting any weapons in circumstances which reasonably suggest that the possessor intends to use the weapon unlawfully.
The Act defines a “dangerous weapon” as “any object, other than a firearm, designed as a weapon and capable of producing death or serious bodily harm, if it were used for an unlawful purpose.”
The point of interest here is that, an employer cannot grant permission, without knowing whether the possessor (or in this instance, the employee) will use the weapon unlawfully.
Knowledge of the Rules
The Labour Appeal Court (LAC) in the matter of Pailprint (Pty) Ltd v Lyster NO and Others (2019) 28 LAC 1.11.47 confirmed that dismissal of employees for “brandishing or wielding dangerous weapons” during strike action was substantively fair. In this matter striking employees were carrying PVC rods, golf clubs, sjamboks and sticks, the crux of the matter was whether employees could be charged and dismissed for company rules that they were not aware of. At paragraph 30 of the judgment, the LAC confirmed that “As acknowledged by the arbitrator in her award, any reasonable employee would know that bringing a dangerous weapon to work would not be tolerated. Thus, to do so in flagrant disregard of a clear workplace rule which prohibits such conduct during a picket or strike, and expressly warns that the consequences of the breach is the sanction of dismissal… This effectively means that the dismissed employees knew or could reasonably have been expected to know that a breach of the rule could result in their dismissal. Accordingly, the contention advanced on behalf of the dismissed employees that the picketing policy did not inform employees that contravention was a dismissible offence is unsustainable on the evidence”
Aspects that the Employer needs to consider
First and foremost, the firearm must by law, be licensed to the individual carrying it. The employer then needs assurance that the employee in question will execute the sole intention of carrying a weapon, as mentioned above, for self-defence and to protect those around them.
Part of this assurance, if obtained legally, is the strict process of the South African Police Service application to possess a fireman, which includes competency, referral letters from colleagues, family and friends regarding the applicant’s mental state of mind and stability.
Section 3(2) of the DWA provides relevant factors which should be taken into account, in this instance as a guideline to the employer, to determine whether a person intends to use the weapon for an unlawful purpose. This includes, but is not limited to, the time and place where the person is found with the firearm, the behaviour of the person, the manner in which the firearm is carried and displayed.
Obtaining permission from your Employer
If an individual is in contravention of the Act, they might make themselves guilty of a criminal offence. For this reason, it is absolutely crucial for you to have the discussion with your employer, and obtain written consent from your employer, to confirm that you legally own a firearm, and want to carry it for your own safety, in executing your normal duties.
The employer will have the final say in the matter. The rules and regulations set out by the employer, will determine whether you will be able to carry a firearm to work. If the Employer does not have a rule or policy regarding firearms, legislation in this regard will be relevant in the sense that you have the right to carry a licensed firearm. It is essential to note that not all workplace rules are necessarily in writing, and might have been communicated verbally. It is your duty as the employee, to ensure you adhere to all workplace rules and policies.
The Right of Refusal
The Employer retains the right of admission, and may refuse access to its premises. By working for the employer, you have a contractual right to be on the premises, however this contractual right can be limited by the employer’s rules and policies which you have expressly or tacitly agreed to abide by.
If the disciplinary code does not state anything and you know of no other barrier to doing so, as stated, you may carry it according to law. If they catch you, be prepared for policy changes in future. If it is against the policy and you are caught, be prepared for disciplinary action.
If the employer agrees and grants permission to the employee to carry a firearm at work, it is advisable to request confirmation in writing.
Should the employer be hesitant to allow you to carry a firearm, you may request the employer to allow you to install a safe on the premises, which conforms to the prescripts of the South African Bureau of Standards (SABS).
Employers can implement rules and policies in the workplace that prohibits the carrying of firearms in the workplace, therefore it is the employer’s right to decide.
If you are in doubt as to whether your colleague may carry a firearm to work, or whether you may carry your firearm to work, remember MISA is just a phone call away!
Kindly utilise the following e-mail addresses and links for assistance:
Legal/Labour-related enquiries Legal@ms.org.za
Legal Reception 011 476 3920 / 071 880 9682
MISA Benefit claim-related enquiries Claims@misa.org.za
Any other enquiries Info@ms.org.za
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