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Procedía - Social and Behavioral Sciences 211 (2015) 796 - 802
2nd Global Conference on Business and Social Science-2015, GCBSS-2015, 17-18 September
2015, Bali, Indonesia
The Employer's Duties and Liabilities in Commuting Accidents in
Malaysia: Law and Management
Nur Hidayah Ab Aziza*, Ab Aziz Yusofb
aFaculty of Law, Universiti Teknologi MARA, 40450 Shah Alam, Selangor, Malaysia cAssoc. Prof. Dr., Universiti Utara Malaysia, 06010 Sintok, Kedah, Malaysia
Abstract
The human resource management (HRM) plays a significant role to ensure the employees have safe commuting to and from workplace. However, as HRM is created by the national law, it is necessary to have a sound law that sets out the employers' duties and liabilities in commuting accidents. Adopting a qualitative method of content analysis, this paper aims to analyse the primary Malaysian laws in order to determine the extent of the employers' duties and liabilities. In conformity with the laws, this paper explores the methods in setting up an effective OSH management system for the prevention of commuting accidents.
© 2015Publishedby ElsevierLtd. Thisisanopenaccess article under the CC BY-NC-ND license (http://creativecommons.Org/licenses/by-nc-nd/4.0/).
Peer-review under responsibility of the Organizing Committee of the 2nd GCBSS-2015
Keywords: Commuting accidents; human resource management; occupational safety and health; safety and health law; occupational safety and health management
1. Introduction
Rapid economic progress in Malaysia since the last three decades has affected the incomes and employment feature of workers in Malaysia. Industrialization has changed the nature of work and workplace, and has resulted in many health and safety issues at the workplace including accidents. The role of law here is to protect workers from workplace accidents as well as to evade workplace hazards via enforcement of laws and regulations. The enactment of the OSHA
^Corresponding author. Tel.: 6017-5524560 E-mail address: nurhidayah5821@salam.uitm.edu.my
1877-0428 © 2015 Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.Org/licenses/by-nc-nd/4.0/).
Peer-review under responsibility of the Organizing Committee of the 2nd GCBSS-2015 doi: 10.1016/j.sbspro.2015.11.170
1994 is significant as it sets out the safety and health standards for many occupations (both private and public sectors) and that employers are bound by the standards. Employers have a duty to provide a safe workplace with no hazards that could give rise to injury or death. It is worthy to note that the law does not only deal with workplace accidents or injuries, but commuting accidents as well. Commuting accident is not new in occupational safety and health yet it is not as popular and given very much attention as industrial accidents. Nonetheless in recent years, it has become a serious issue at national and international levels and has received much concern especially in developing countries including Malaysia. SOCSO (2013) has reported that the total number of commuting accidents is increasing each year with 26, 256 cases reported in 2012, 24, 809 cases in 2011 and in 2013, the number has further increased to 27, 671 cases which constitutes 44 per cent of the total accidents reported in that year (Darus, 2014). It can also be observed that in the past six years, commuting accidents have increased 40 per cent from 19, 041 cases in 2008 (SOCSO, 2013). This situation is worrying since the accidents not only can cause loss of lives but also major and severe losses, socially and economically, to the employee, organization and the country as a whole. Hence, the need to have an effective OSH management system for the prevention of commuting accidents is indeed necessary in protecting the safety and wellbeing of employees.
Under the law, employers have a duty to ensure the employees' safety whilst commuting to and from workplace. An accident that occurred during commuting must fall within the ambit of the law in order to be treated as a commuting accident. The doctrine of vicarious liability under the common law exists to hold an employer vicariously liable for the tort of his employee in the course of employment. The scope "in the course of employment" raises a complex issue in its application to commuting accident cases. The question thus arises as to whether an employer is vicariously liable when his employee injures someone in an accident? The answer to this question depends on the definition of "commuting accident" itself. Thus, adopting a qualitative method of content analysis, this paper analyses the principal Malaysian laws relating to commuting accidents in order to determine the extent of the employers' duties and liabilities in commuting accident cases. Another important aspect of occupational safety and health discussed in this paper is the methods and guidelines for employers in setting up an effective OSH management system for the prevention of commuting accidents. Human resource department is responsible to plan and implement the methods in its organization. This is particularly vital in reducing the risk of civil and criminal penalties under the law as well as protecting the safety and wellbeing of employees on the whole.
2. An overview of commuting accident in Malaysia
Studies by SOCSO (2010) have shown that there was great decline in the total number of workplace accidents in Malaysia each year since 2008, but the total number of commuting accidents is radically increasing with an increase of average 7 per cent each year until 2012. This indicates a serious situation in Malaysia that needs to be addressed. In fact, the number of commuting accidents is likely to rise in the coming years due to the reason that many employees especially those with lesser earnings prefer to ride motorbikes to workplace compared to cars. Using motorcycle increases the risk of accident among its users. A study has been conducted in 2002 by the Road Safety Research Centre, Universiti Putra Malaysia on the level of fatality risk among the road users. The study showed that the relative risk of death was 1.5 times higher among the motorcyclist compared to other road users (RSRC, 2002). As we acknowledged, motorcyclists are known as the majority road users in Malaysia.
The occurrence of commuting accidents in Malaysia could be attributed to many factors. It was found that speeding (32.3%), careless driving (28.2%), careless overtaking (15.1%) and careless cornering (11.7%) are the major factors that contribute to commuting accidents (Malaysia Road Safety Council, 2002). Other factors are travel distance, environmental condition, and traffic operation conditions (Jamaluddin, Ho, Shabadin, MJ, & AB, 2013). It is obvious that the drivers' behaviour is the most significant cause in commuting accidents. The drivers' dangerous behaviour when driving could be due to several identifiable reasons including low safety awareness among employees about safe riding and driving, inadequate training programs targeted at commuting accidents, poor commuting safety management and road safety elements in OSH management systems at the workplace (MRSC, 2002).
3. Duties and liabilities of employer
3.1. Definition and concept of commuting accident
The term "commuting" per se refers to the journey from home to the workplace or from the workplace back home while an "accident" is an unplanned event, which could result in injury to persons, or in damage to plant and equipment or both (James, 1983). Commuting accident is thus defined as "an accident occurring on the usual route between a worker's residence and place of work or work-related training location and vice versa, which results in personal injury or death" (Kirch, 2008). This definition also includes accidents happening on the usual route to the place where the worker regularly takes his/her meal or remuneration.
Under Malaysian law, the definition of commuting accident can be found in Section 24 of the Employees Social Security Act 1969 (hereinafter referred to as 'ESSA 1969') which states that commuting accidents are accidents arising out of and in the in course of employment occurred while the employee is travelling on the direct way between the place of work and:
(a) The worker's place of residence place of residence or stay;
(b) The place where for any reason which is directly connected to his employment; or
(c) The place where the worker usually takes his or her meals during any authorized recess.
Section 24 further excludes any accident which occurred during any interruption of, or deviation from, the worker's journey made for the above purposes. It is clear from the definition that an employee's travel from his home to the workplace and from the workplace to his home would constitute a journey directly connected with his employment. Time, place and circumstances are significant to determine such an occurrence. The phrase "place of residence or stay" was argued in the case of Wong Yew Loy v Ketua Pengarah Pertubuhan Keselamatan Sosial
1 where strict interpretation was made. In this case, "place of residence or stay" must eventually relate to the employee's place of work. Both must have a direct nexus to the workplace i.e. it must be the base from where he goes to work everyday before any accident occurred can be deemed to arise out of and in the course of his employment. The terms "interruption" may be interpreted differently but it can be said that if the employee is travelling to or from workplace but changing his direction to get something for his purpose and thus goes beyond the employer's control, he is not included with the definition. Therefore, where the employee's vehicle collided with another vehicle and he got injured, he will not be protected. However, in practice if the interruption is the essential needs of everyday life, an accident will be considered a commuting accident. This has been recognized by the Court where deviations to the shop, to the cafe or to drop by a friend's house would still be regarded as directly connected to the employment. 2 Other examples include the act of filling petrol in the car and withdrawing money from ATM machine. Hence, any injury sustained from an accident during the period will be treated within the ambit of Section 24.
In addition, the definition given by the International Labour Organization (ILO, 1981) would also serve as a guide in distinguishing between a workplace accident and a commuting accident. It states that "commuting accident" is an accident which results in death or personal injury and which occurred on the direct way between the place of work and:
a) The worker's principal or secondary residence, or
b) The place where the worker usually takes a meal; or
c) The place where the worker usually receives his or her remuneration.
It can be observed that the definition is narrower compared to the definition in Section 24 of the ESSA 1969. It confines the scope of commuting accident to three explicit circumstances only, thus allows very limited interpretation.
1 Wong Yew Loy v Ketua Pengarah Pertubuhan Keselamatan Sosial [2009] MLJU 1264
2 Ketua Pengarah Pertubuhan Keselamatan Sosial v Tham Tian Siong [2008] 7 MLJ 854, Ketua Pengarah Pertubuhan Keselamatan Sosial v Vadivelan Sandara Saigara [2008] 4 ILR 485
3.2 Duties and liabilities under common law
Under common law, employers owe a duty of care to their employees to provide a safe system of work. This is the main facet of the employer's duty implied by the law. Employers are vicariously liable for the torts of their employees which are committed during the course of employment. Hence, in commuting accident cases, can employers be liable for employees' accidents during employee commutes? Whether the law is sufficiently wide to protect the employees in commuting accident cases?
In an employer-employee relationship, the employer has the duty to always protect the employees' safety at work. The phrase "at work" does not necessarily means at the workplace but the duty of care owed by the employer is wide to cover employees who are travelling for work. Where an employee suffers injury at work due to lack of care by the employer, the employer shall be liable for negligence and the injured employee may claim for damages.3. Duty of care exists in normal circumstances whereby if an employer does not take the usual degree of precaution, the employee or his property may be injured or damaged. Thus, the law requires an employer to take some reasonable care in the form of positive conduct in foreseeable circumstances which could result in detrimental effects. It does not entail the employer to confer a complete guarantee that the employee will not be injured. The primary test to determine the existence of a duty of care is the "neighbour principle" which was laid down in the landmark case of Donoghue v Stevenson.4 Lord Atkin said "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers question, who is my neighbour? receives a restricted reply... you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." We can see that the neighbour principle is an objective test i.e. Would a reasonable man, who is in the same circumstances as the defendant, foresee that his conduct will adversely affect the plaintiff? The word 'closely' does not necessarily mean close in the physical sense. It refers to the foresight of a reasonable man who is able to foresee that the plaintiff will be affected by the defendant's act or omission. This clearly includes the relationship between an employer and employee where the employer is the head in an organization and thus responsible to ensure that the working environment is free from any dangerous elements. In commuting accident cases, employers owe the same duty as the employee is not required to be physically close with the employer i.e. at the workplace when the accident occurred.
Here, the employer's duty is three-fold namely to engage a competent person as employee, to provide adequate safety equipment, and a safe system of work for all employees. If the employer breaches this duty, he shall be liable for negligence. Thus, if the nature of work of an employee is travelling regularly by car, the employer has a duty to provide him with a car which is in good and safe condition and to ensure that the employee is a competent driver and in good health condition to travel. However, if an accident occurs while the employee commutes despite the employer has taken all reasonable steps that are expected to be taken to avoid the accident, then he can deny any action of negligence. Therefore, the employer must be cautious in his duty at all times.
It is therefore clear that an employer can be held liable for the injury suffered by his employee in an accident. Further, question arises as to whether an employer is liable for accidents caused by his employee that occur during the employee's commute to and from work? To answer this question, we must look at one area of common law duty and liability known as the doctrine of vicarious liability. The doctrine of vicarious liability is the liability imposed on an employer for the fault of his employee. Hence, if an employee injures someone within the scope of his work, the employer will be vicariously liable. Why is it very important to establish this doctrine? Lord Denning in Launchbury v Morgans5 submitted that vicarious liability doctrine is important because "otherwise it would mean that the injured
3 Blyth v Birmingham Waterworks Company [1856] 11 Ex Ch 781. Negligence is the "omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do".
4 Donoghue v Stevenson [1932] AC 562
5 Launchbury v Morgans [1971] 2 QB 245 at 253
person would get no redress: for, more often than not, the servant or agent has not the means to pay: Whereas his master or principal has the means: or, at any rate, ought to insure against the liability so as to get the means to pay. In this way the innocent victim is not left to bear the whole loss himself. It is distributed amongst the community in a way that is fair to all." The law presumes that employers are better loss distributors compared to the employees who may lack the means to pay damages to the injured party. Thus, this doctrine allows the injured person to obtain compensation for the harm from the employer, rather than the employee, even though the employer is not at fault.
Nonetheless, in order to hold an employer vicariously liable, there are certain conditions to be satisfied. Namely the injury done by the employee must be in the course of employment, and committed by the employee, and there is special relationship recognised by law between the employer and the employee. So, whether an employee's travels to and from work are within the course of employment? As a general rule, the words "in the course of employment" means the torts of the employee is either a wrongful act authorised by the employer, or a wrongful and unauthorised mode of doing some acts authorised by the employer (Salmond, Heuston, & Buckley, 1987). Applying this to specific factual scenarios of commuting accidents is rather complex. It would mean that the doctrine of vicarious liability will not apply if the employee had no express or implied authority from his employer to commute. For example, a lorry driver who picks up his child at school would likely be regarded as acting outside the course of his employment.
However in State Government of Perak v Muniandy6, a lorry driver who gave a lift to another employee who was going home to hand over his pay to his wife was regarded by the Court as acting in the course of his employment and the employer was vicariously liable for the driver's negligence. The law in Section 24 of the ESSA 1969 is particularly relevant in determining the scope of the employee's employment as it specifically defines the scope of commuting accident. Here, the circumstances, time and place of the accident should have direct nexus with the employment. An accident that occur during the employee's commute from his home to the workplace and vice versa, from the workplace to any place for the purpose of work and vice versa, and from the workplace to the restaurant (or cafe or food court) during recess would definitely constitute an accident occurred "in the course of employment". Thus, an employee is still acting in the course of employment even when he is not actually working. The issue is other than travelling to have food or basic necessities in life we can say, a situation where an employee, instead of proceeding straight to his place of work, sends his children to school can be deemed to be acting in the course of his employment? If this is the daily routines of that employer, is the accident that he met during journey is a commuting accident within the ambit of Section 24? Should he get the permission of the employer first for such travel so that the journey is considered as authorized by the employer? These are the areas that the law fails to take into account. It may be argued that the law should not frustrate the employee by giving a narrow or restrictive interpretation of Section 24 of the ESSA 1969 simply because the journey was made for a reason which was not directly connected to the employment.
3.3 Duties and liabilities under the Occupational Safety and Health Act (OSHA) 1994
In Malaysia, the main Act that deals with safety and health in employment is the Occupational Safety and Health Act (OSHA) 1994 (hereinafter referred to as 'the Act'). Objectives of the Act are to secure the safety, health and welfare of person at the workplace and to protect others against risks to safety or health at the workplace. Under the Act, the responsibility of the employer has been set out which include the duty of care to provide and ensure the safety and health at the workplace including commuting safety.
Part IV of the Act specifies the general duties of employers. Section 15 of the Act confers duty to employers "to ensure, so far as is practicable, the safety, health and welfare at work of all his employees". The terms 'at work' does not imply only the duration when the employees are working at the place of work but includes when the employees are not actually working and are outside the place of work. This should be read in light of Section 24 of the ESSA 1969 where the employers' duty towards their employees extends to the times when the employees are commuting in the course of employment. Thus, the physical place of work is immaterial as long as the journey is directly related to the employment. On the other hand, the terms 'so far as is practicable' should be read in general taking into account
6 State Government of Perak v Muniandy [1986] 1 MLJ 490
the safety, health and welfare of employees. The law requires the employer to act reasonably having regard to the severity of the hazard or risk, knowledge about the hazard or risk, and ways to remove or minimize it, availability and suitability of the ways, and the costs of doing so.7 This means that an employer is not required to perform his duty beyond what is expected of a reasonable man in like circumstances. Under Section 16 of the Act, employers are required to prepare a written statement of the safety and health policy and revise it as often as possible. This law is applicable to all employers employing more than five employees.8
Another duty imposed by the Act on the employers is the duty to conduct his undertaking in such a manner as to ensure, so far as is practicable, that other persons not his employees, affected or exposed to risks to their safety or health.9 It is clear that employers must also protect other persons besides his own employees if the health and safety of the persons would be affected if he did not carry out his duty in that regard. For example, an employer of school bus services should provide essential information on the rules whilst on the bus to the students and parents to ensure the safety of students such as "not to throw objects inside or outside the bus", "no smoking", and " in case of emergency, students should listen to the driver's instructions". The employer need not approach every student or parents personally to warn them of the danger as it is not practical or reasonable but a clear notice would be sufficient to draw them attention to the risk that might exist. If an accident occurs during commuting, the employer may not be liable for breach of duty under this section if he has taken all the reasonable steps to avoid the risk.
Any violation of the above provisions is an offence under Section 19 of the Act. An employer shall be liable to a fine not exceeding RM50, 000 or imprisonment for a term not exceeding two years or both.10
As OSHA 1994 is based on self regulation model, the responsibility to ensure safety and health at work lies with those who create the risks (employer) and those who work with the risks (employees). It is worthy to note that a new code called the Occupational Safety and Health Industry Code of Practice for Road Transport Activities 2010 has been formulated by the Department of Occupational Safety & Health (DOSH, 2010) which provides information and practical guidance for employers in performing their general duty to ensure the health and safety of their employees and the general public. With the implementation of the Code, it is hoped that the safety of the employees and the public are better protected and commuting accidents could be prevented.
4. OSH Management System for the prevention of commuting accidents
It is the duty of the employer to ensure the safety and health of his employees at the workplace and this includes commuting safety. Employers have a duty to effectively manage the health and safety system for the prevention of commuting accidents as studies have shown that commuting accidents have more serious consequences than ordinary workplace accidents. Statutory duties of employers are expressly provided in the OSHA 1994. In order to comply with the OSHA 1994, employers must have commitment to the OSH management system for commuting safety including policy making, organizing, planning and implementation, evaluation, and action for improvement.11 As provided in Section 15 and 16 of the OSHA 1994, OSH policy and procedures should be developed and implemented by the employers. Employers should give training to all employees including drivers as part of their duty under Section 15. Training is a learning experience seeking a relatively permanent change in an individual that will enhance his aptitude in performing jobs (De Cenzo & Robbins, 1996). Yusof (2008) explains that a systematic training process on four major stage model must define the training needs, the kind of training required to satisfy the needs, use experienced and trained personnel to plan and implement the training, and review the training to evaluate its effectiveness. Hence, the training for the prevention of commuting accidents must identify the group of employers who are at higher risk
7 Section 3 OSHA 1994
8 Occupational Safety and Health (Employers' Safety and Health General Policy Statements) (Exception) Regulations 1995
9 Section 17 OSHA 1994
10 Section 19 OSHA 1994
11 OSH management system in Malaysia was adopted from the system suggested by ILO in ILO Guidelines on Occupational Safety and Health Management Systems 2001.
namely the motorcyclists. The training should include safe driving practices and guidance in order to create awareness among the employees about safety driving and commuting. This should be given to all new employees.
As stated in the OSHA, written policy that requires employees especially those riding motorcycle to and from the workplace to undergo safe driving training should be established. In addition, the employer should conduct driver's license background checks on prospective drivers before they are hired especially regarding drug offences. In respect of proper maintenance of vehicles, the employer should establish written procedures for all vehicles. Schedules that allow drivers to obey speed limits and limit their hours of service should also be formed (Nordin, 2014). The employer may need to put maximum hours for driving per day. Trip schedule for every driver should include time distance of the journey and must be prepared in advance by the employer. This is important mainly for "driver" employees or "outdoor duty" employees to ensure that they have enough rest and their fitness level are preserved especially for long distance journey. Besides, before each travel, the employer must ensure that the driver is fit to drive and the vehicle has been inspected to avoid unnecessary risk of vehicle breakdown. If he is not fit to drive, the drivers should not be allowed to work. The employer should employ substitute driver to perform the work.
5. Conclusion
The employer's duties and liabilities in commuting accidents are broadly encompassed in the OSHA 1994 and under common law. As mentioned, the broad feature might well give rise to difficulties in determining the extent of the duties and liabilities. Thus, the extent of the duties and liabilities has to be decided based on the nature and circumstances of each case. The reasonableness of the duties, and the relation of a commuting with the employment must be weighed on a case-by-case basis as they are different in different context. Nonetheless, the accident that occurred must fall within the ambit of the law. OSH management system exists to help preventing commuting accidents and to ensure the health and safety of the employees as a whole. Hence, the Malaysian employers have a duty to set up their OSH management systems for the prevention of commuting accidents based on the available guidelines which must be in conformity with the law in the OSHA 1994.
References
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