reparation for injury

WHEN an employee is injured or killed during the course of their employment, they or their dependants may claim compensation within 12 months of the date of accident or death.

WHEN an employee is injured or killed during the course of their employment, they or their dependants may claim compensation within 12 months of the date of accident or death.

They can claim from the Workmen's Compensation commissioner.

Workmen's compensation is governed by the Compensation for Occupational Injuries and Diseases Act (COIDA).

The COIDA prevents an employee (or their dependants) from claiming compensation directly from an employer in the event the employee is injured or killed at work.

An employee may, however, claim increased compensation if the injury is as a result of the employer's negligence.

In terms of the COIDA, an employee does not have to prove that the injury was the employer's fault in order to be entitled to compensation.

The basis of the claim is simply that the employee was injured or died as a result of an accident arising out of and in the course of employment.

However, if the employee was injured as a result of his wilful or serious misconduct, then no compensation will be payable to him or his dependants except if he is left seriously disabled or if he is killed and leaves a dependant who is totally financially dependent on him.

The COIDA sets out five scenarios for which compensation can be paid. These are death, temporary and permanent disablement, where the employee contracts an occupational disease or where the employee requires medical, hospital or surgical treatment.

Compensation awarded as a result of the death of an employee does not form part of the deceased employee's estate.

Furthermore, any compensation awarded is not capable of being attached to satisfy a debt.

The COIDA provides that if the employee was injured in circumstances where a third party as well as the employer is liable for damages, the employee may also sue the third party for damages in addition to claiming compensation. But the court, in awarding the damages, will take note of the compensation already awarded to the employee in terms of the COIDA.

A critical question that has arisen is what happens when a person is employed by a labour broker and renders services for and at the premises of a client of the labour broker?

In the case of Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck, the Supreme Court of Appeal held that the COIDA does not apply to actions between employees of labour brokers and the brokers' clients.

This case involved an employee who was employed by a labour broker and injured while rendering her services to a client of the broker.

The employee successfully instituted a civil action against the broker's client for damages over and above her workmen's compensation claim, citing the labour broker as her employer.

The court held that employees of labour brokers are not precluded from instituting civil actions against the brokers' clients whom the employee was working for at the time of injury.

Therefore, if an employee of a labour broker is injured while rendering services at a client of the labour broker and the client is liable, then the employee may sue the client for damages sustained and may also claim compensation in terms of the COIDA.

Workmen's compensation is a no fault system of compensation that is designed to compensate employees who are injured in the course of employment, as well as compensate the dependants of employees who are killed at work.

l Lavery Modise is deputy chairperson of Eversheds and Jean Ewang is a candidate attorney at Eversheds

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