09 Jun LIMITATION PERIODS UNDER THE OSH ACT
By Catherine Ramnarine
In the recent case of CA P295 of 2019 The University of the West Indies (“UWI”) v the Occupational Safety and Health Authority and Agency (“OSHA”), the Court of Appeal ruled that there was a six month time limit for OSHA to bring legal proceedings at the Industrial Court for breaches of the Occupational Safety and Health (“OSH”) Act. Up until this decision, it was widely understood that OSHA had a two year time limit for bringing such proceedings. Accordingly, the Court of Appeal’s decision not only impacts the UWI case itself, but many of the other OSH complaints currently before the Industrial Court.
OSHA has applied for leave to appeal the Court of Appeal’s decision to the Privy Council and it remains to be seen how things will ultimately shake out. However, in the interim, it is useful to take a look at the OSH Act and the Court of Appeal’s decision.
There are several types of claims that can arise under the OSH Act. The Act itself creates two types of offences. Breaches of the OSH Act and Regulations are deemed “safety and health offences”. They are subject to the jurisdiction of the Industrial Court and punishable by fine. The Act also establishes several “summary offences” which are subject to the jurisdiction of the Magistrates Court and may be punishable by fine and/or imprisonment. Proceedings for both types of offences are at the initiative of OSHA, as the regulators established under the Act. Additionally, apart from the safety and health offences and summary offences expressly established under the OSH Act, it is also open for individuals – for example employees injured in workplace accidents – to bring civil proceedings against employers for breach of their statutory duties under the Act.
There are also several “limitation periods” – i.e., prescribed time periods for initiating legal proceedings – established under the OSH Act. Section 93 of the Act stipulates that a complaint for an offence under the OSH Act shall be made within six months of the date when its occurrence came to the knowledge of an OSHA inspector. Section 97B of the Act stipulates that all proceedings under the OSH Act shall be initiated no more than two years after “the cause of action” has arisen.
The issue of which limitation period – i.e. six months or two years – applies to which type of claim had come up before the Industrial Court on several occasions, notably in OSHA 001 of 2012 OSHA v Grand Bay Paper Products Limited and OSHA 003 of 2012, OSHA v Green Dot Limited. The Industrial Court had consistently taken the view that the six month limitation period applied to summary offences, and the two year limitation period applied to safety and health offences. This meant that the Industrial Court had jurisdiction to hear any legal proceedings concerning breaches of the OSH Act, once they were filed within two years of the date that the alleged breaches occurred. The Industrial Court adopted this same position when the UWI case came before it. However, UWI appealed the Industrial Court’s decision and, as noted above, the Court of Appeal took a different view of the OSH Act.
The Court of Appeal looked at the wording of the OSH Act. It ultimately ruled that the six month limitation period applied to both safety and health offences and summary offences established under the OSH Act, while the two year limitation period applied to civil claims.
The complaint against UWI had been filed more than six months but less than two years after the alleged offence occurred. Since the Court of Appeal ruled that it should have been filed within six months, this meant that it had been filed too late. The substantive case against UWI was accordingly struck out.
As noted above, the Court of Appeal’s decision not only impacts UWI itself, but also the other OSH complaints currently before the Industrial Court, many of which have also been filed more than six months but less than two years after the alleged offence(s) occurred. If the Court of Appeal’s decision stands, it means that they too are liable to be struck out.
It should also be noted that the six month time period begins to run, not from the date that an alleged offence occurred, but from the date when its occurrence came to the knowledge of an OSHA inspector. The question of when the occurrence of an offence came to the knowledge of an OSHA inspector may be easier to determine in some cases than in others.
It remains to be seen whether OSHA will be granted leave to appeal to the Privy Council and, if so, whether the Privy Council will agree with the Court of Appeal’s interpretation of the OSH Act or take a different view. In the interim, many of the OSH complaints currently before the Industrial Court have been adjourned pending final determination of this important issue.