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and Diseases ACT, 130 OF 1993
Lucky Moloi

 Provided by the Commission for Conciliation, Mediation and Arbitration(CCMA) for more info go to www.ccma.org.za

 
 BACKGROUND

  

The ILO's primary goal is to promote opportunities for women and men to obtain decent and productive work that is characterised by conditions of freedom, equity, security and dignity. In this formulation of decent work, the protection of workers against work-related sickness, disease and injury, as embodied in the Preamble to the Constitution of the ILO, is an essential element of security and continues to be a high priority for the ILO.
  
Mistakes, accidents, oversights, injuries, no matter how skilled and careful, can happen even in the safest workplaces. They usually occur when least expected and inadvertently cause harm to these employees. According to ILO estimates, each year two million men and women die from work-related diseases and accidents - a death toll averaging some 5,000 workers a day. Both employers and employees should take responsibility for their own negligent acts, since malpractice is defined as "the negligent act of a person with specialised training and education."

   

This is not to say, that employers and employees go out there and act irresponsibly, doing hasty and incompetent work in order to attain their objectives. Some of these accidents happen accidentally and not because of negligence. Even professionally trained individuals in different workplaces who understand very well what their job descriptions entail, commit mistakes that may be fatal. The injuries that are sustained and diseases that are diagnosed impact on worker compensation.
  
THE COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT 130 OF 1993
    

 In South Africa, the Compensation for Occupational Injuries and Diseases Act or COIDA came into effect on 1 March 1994. It replaced the old Workemen's Compensation Act (WCA). The Act states that employers must pay a certain amount of money into a central fund each month. The amount depends on how dangerous the industry is, how many workers are employed in the company and the wages paid to the workers. This fund is called the Compensation Fund. If workers are injured at work or get a disease caused by their work (occupational disease), they get paid out of this fund. The person in charge of this fund is the Compensation fund.
   
This statute ensures that employees or their dependants who have been disabled due to injury, illness or death arising from the performance of work are compensated from a fund specially created for that purpose. In AMAWU obo EL Tenene v Kleenserv cc (FS9326), the applicant alleged unfair dismissal on grounds, amongst others, that he did not receive his salary on the payment date whilst he was on sick leave due to an injury he had sustained whilst on duty. The respondent stated that it had stopped paying the employee as it was legally justified to so do in terms of the relevant provisions of the COIDA because the employee was injured at work and was excessively absent from work. According to the respondent, the applicant can claim compensation from the Compensation Fund.
 
This Act is wider in scope than the Workmen's Compensation Act, which it replaced in 1993. It excludes only soldiers, policemen, domestic workers and contract workers. Compensation is payable only if the accident which caused the injury, illness or death occurred within the scope of the employee's employment and was not predictable. Employees receive no payments in respect of temporary disablements of three days or less, or those resulting from wilful misconduct.
  
THE COIDA AND ITS IMPLICATION ON THE CCMA
  

In the case of Rodney Allan v New Line Piping cc (KN34803), the commissioner noted that the CCMA could only conceivably arbitrate on the failure or tardiness of an employer to submit a compensation claim for an injury on duty under the scope of a residual unfair labour practice in terms of Schedule 7, Item 2 (1)(b) of the LRA due to the employer allegedly committing an unfair act or omission relating to the provision of 'benefits' to an employee, if such a claim could fall under the narrow definition of benefits in the LRA.

 

Even then, the commissioner could at most only direct employers to fulfil their obligations in this regard, but not more, which would fall squarely under the ambit of the COIDA. No consolidation of proceedings with the LRA processes exist in this legislation which can adjoin it with an unfair dismissal dispute. The CCMA therefore did not have jurisdiction to arbitrate this issue in dispute as it had been referred as a claim for benefits, although the compensation claim would in reality had appeared to have been the crux of the dispute between the employee and employer.
  
In Manga v Zhauns (WE37116), the applicant testified that he had been injured whilst on duty. In hospital, he was informed that his injuries were so severe that he would have had to be booked off from work for some time. The medical practitioner who had dealt with the applicant's case had informed his employer accordingly. During the applicant's period of incapacity he received compensation from the "Workmen's Compensation Fund", however, this form of compensatory allowance was terminated as he had been advised that he was fit to resume work. On his return to work, he was dismissed.
         
The commissioner noted that the employer had erred in following the procedures necessary in instances of termination of employment as per the Code of Good Conduct in terms of Schedule 8 of the LRA. The commissioner, therefore, held that in the absence of any procedures followed by the employer and their non-obligation to the relevant legislation, coupled with the period from the date of dismissal to the date of the arbitration, the employer had to compensate the employee. The respondent had committed a delict which the employees viewed as an act of excluding the employer from any liability.
    
EXCLUSION OF EMPLOYER FOR DELICTUAL LIABILITY
   

Delict is the area of law that governs the obligation to refrain from wrongful conduct which may harm the interests of another, and the duty to compensate one who is harmed as a result of the other's wrongful conduct. The term 'delict' can also be used to refer to specific forms of action arising under this area of the law. Where there is duty for an individual to compensate another (also known as the duty to make reparation) the one compelled to make payment is referred to as being delictually liable (www.erasmuslaw/scozia/obligations).
   
Section 35 of the COIDA excludes the employer from delictual liability for all damages arising out of occupational injuries and diseases. In the case of Free State Consolidated Gold Mines (Operations) Bpk h/a Western Holdings Goudmyn v Labuschagne (1999) 4 LLD 766 (LAC), the Court held that in a case of total permanent disablement of an employee, there is no obligation on the employer to retain the services of an employee or to find alternative employment for an employee. But an employer who dismisses a partially disabled worker must, before the dismissal, consult with the employee concerning the disablement and investigate whether the employee can be accommodated elsewhere in the employer's business.

 

The obligation to consider this alternative to dismissal is greater where the employee's disability or incapacity is sustained in the course of the employee's employment. However, where the employee is permanently and totally disabled, it serves no purpose to offer the employee alternative employment and the employer was under no obligation to keep the employee in employment.
   
According to the LAC judge, in the above case, a claim for compensation for injury resulting from the employer's insistence that employee performed certain work that was not justiciable by the Industrial Court under the unfair labour practice jurisdiction. The employee had contended that the employer committed an unfair labour practice by forcing the employee to do work which it knew he was unable to perform because of his back problem, and for this gross negligence, the employee was entitled to compensation. The LAC judge commented that this alleged liability of the employer was in conflict with section 35 of the COIDA, which specifically excludes employer liability for damages in respect of any occupational injury or disease. The employee, therefore, had no claim against the employer for his injuries, regardless of the employer's conduct. Section 35 exempts an employer from delictual liability for all damages, not only those enumerated in the Act. Therefore, the employee could not avoid the provisions of the COIDA by trying to categorise a regrettable injury as an unfair labour practice and then attempt to claim in terms of the LRA.

  

In the case of Jooste v Score Supermarket Trading (Pty) Ltd(1999) 20 ILJ 525 (CC), the Constitutional Court was asked by the applicant to confirm a decision of the Eastern Cape High Court which declared section 35 of COIDA unconstitutional. The applicant fell and was injured at her workplace. She claimed that her injuries were caused by the negligence of one or more of her fellow workers during the course of their employment. She brought a common law claim for damages against the employer, who argued that section 35 of COIDA prevented an employee from making such a claim against an employer. The applicant responded by stating that the provision was unconstitutional in that it violated her rights to equality, fair labour practices, and access to courts. Her equality challenge was based on the fact that the provision denies employees their common law right to claim damages from their employers. This, she maintained, placed employees at a disadvantage in relation to people who are not employees and who retain such a right. The High Court found that the provision violated an employee's right to equal protection and benefit of the law.

The Constitutional Court (the Court), accepted that the challenged provision differentiated between employees and non-employees, found there was no evidence in support of the proposition that the differentiation in issue amounted to unfair discrimination and in fact the applicant advanced no contention in that regard. The Court found that the challenged provision was not arbitrary or irrational. Nor did it favour employers only. In other words, it was rationally connected to the legitimate purpose of the Act. The Court conceded that whether an employee ought to have retained the common law right to claim damages, "either over and above or as an alternative to the advantages conferred by the Compensation Act, represents a highly debatable, controversial and complex matter of policy.

  

It involves a policy choice which the legislature and not a court must make. The contention represents an invitation to this Court to make a policy choice under the guise of rationality review; an invitation which is firmly declined. The decision of the High Court was therefore not confirmed. The Constitutional Court was clearly not blind to the hidden assumptions behind the law and policy and correctly identified the legislature as the proper forum for balancing the competing interests of an employee's need for certainty for at least some compensation, and the need for employers to deal with workplace accidents in a predictable manner which disrupts production as little as possible.

  

The implication of the Jooste decision is that the computation of compensation to dependants is limited in terms section 54 and Schedule 4 of the COIDA. Regardless of the negligence of the employer, the same formula is used in the calculation of the pension and lump sum set out in the Schedule. Although section 56 provides for increased compensation where the employer was negligent, the only penalty the employer may suffer is in terms of section 85(2), which allows the compensation commissioner to assess an employer with a comparably poor accident rate at a higher rate of assessment for contributions to the compensation fund established by the Act. The Act thus effectively serves to insulate the negligent employer from the full delictual consequences of that negligence (Rycroft 2003: 1).
   

THE PERCEPTION PRIOR THE SIGNING OF THE NEW OCCUPATIONAL HEALTH AND SAFETY ACCORD
 

NUMSA's case
 

NUMSA, however, argued that the law provides "hopelessly inadequate payouts" to those injured at work. It prevents workers from taking employers to court for negligence. It fines employers small amounts for negligence. This makes it cheaper for the employer to pay a fine and have the accident happen repeatedly, than to stop, as a result, the accident from happening at all by correcting the problem. For example, in their website, it is reported that a worker who lost three fingers in an accident at work a few years ago was paid R3 330 for his amputated fingers.

  

But two years later, the condition deteriorated to such an extent that he could not use any of his fingers properly. An appeal was lodged with the Compensation Commissioner and R10 000 and small monthly pension was an offer put forward by the Compensation Commissioner. NUMSA felt that the Compensation Commission had done its bit, but it seemed, according to NUMSA, that the employer had gone unscathed. NUMSA also argued that the employers are highly subsidised. At present an employer pays a modest levy that bears little or no relation to the harm that his/her unsatisfactory health and safety practices cause. In turn a company is granted immunity against any claim that an injured employee might otherwise bring.
   
The Richard Spoor factor
 

According to Richard Spoor, a specialist health and safety lawyer, the full ambit of the legal constitutional and social arguments against immunity of employers, were also not placed before the courts. "We have not heard the end of this issue, he said, and it would be a mistake for employers to become complacent". According to Lee Furter, the author of the book entitled Workplace Compensation in South Africa, the low and inadequate levels of compensation, which are fixed by statute, mean that this subsidy is very substantial.

 

The second subsidy is the cross-subsidisation of "bad" employers by "good" employers who take health and safety seriously. Good employers contribute more than their fair share of funds to the Compensation Commissioner, while employers with a bad safety record constitute an unfair drain on the Fund's resources. Good or bad, they all pay the same amount. This is a disincentive on the part of the employer because, according to Spoor, policing employers is not enough.
  
Spoor commented that the simplest and best incentive is to hold employers liable for the full extent of the harm they inflict on their employees. If poor health and safety standards cost companies money, these companies would take steps to remedy the situation. The starting point of reform is to challenge the immunity that employers presently enjoy. There are legal, constitutional and social arguments to be made against immunity.
  
THE NEW OCCUPATIONAL HEALTH AND SAFETY ACCORD

 

Irene Louw of the Business Day reported, in 2002, that a new occupational health and safety accord was signed by representatives of business, labour and government, committing themselves to minimise workplace injury and to securing a healthy and safe workplace. Labour Minister, Membathisi Mdladlana, said that "The socioeconomic damage of health and safety incidents and fatalities on enterprises, the workers and their families, as well as the entire society, have reached the levels where the social partners deemed it proper and fitting to find a common solution and co-operative approach to the problem".

 

This, he said after the signing of a new occupational health and safety accord by representatives of business, labour and government, committing themselves to minimise workplace injury and to securing a healthy and safe workplace. The intention of the new occupational health and safety accord is to "debunk the misconception that occupational health and safety is the sole responsibility of government", said Congress of SA Trade Unions second vice-president Joyce Pekane. She further added that the ultimate responsibility rested with the employers. The accord strives to realise the ideals of a healthy and safe working environment, the development of best practices in occupational health and safety and the elimination of incidents and fatalities in the workplace. The accord embraces the principles enshrined in ILO Convention 155 and ILO Convention 176.
  
CONCLUSION
  

Despite some of the best legislation in the world, many South African industries kill and maim thousands of people each year. Employers, on one hand, need an incentive to maintain healthy work environment, however, policing is not the answer. On the other hand, employees need to be protected for reporting on unscrupulous employers who violate the COIDA. According to Spoor, the starting point of reform is to re-evaluate the immunity that employers presently enjoy. There are legal, constitutional and social arguments to be made against immunity. The principle of accountability that is enshrined in South African common law, which ensures that people respect each other's rights, health and property should be respected at all costs by both employers and employees.
  
REFERENCES

 

Bennie, J. 2002. Health And Safety Complaints Resolution Process - PartIl: Canada Labour Code: Bulletin No. 1999-2002 (165)
Furter, L. 1999. Workplace Compensation in South Africa. Internet posting www.nosa.co.za (Accessed September 2003)
ILO Update 2003. Safety and health culture in a globalised world. Internet posting www.altavista.co.za (Accessed in September 2003)
ILO-OSH. 2001. Guidelines on occupational safety and health management systems. ILO Publications. Geneva
Kazan-Allen, L. 2001. South African claimants briefed on Cape asbestos settlement. Internet posting www.altavista.co.za (Accessed September 2003)
Republic of South Africa. 1993. Compensation for Occupational Injuries and Diseases Act 130 of 1993
Republic of South Africa.1993. Occupational health and Safety Act 85 of 1993
Rycroft, A. 2003. Corporate homicide. Internet posting www.irnetwork.co.za (Accessed in October 2003)
Cartoons = www.cartoonsource.com
  
CASE REFERENCES
 
  
AMAWU obo EL Tenene v Kleenserv cc (FS9326)
Free State Consolidated Gold Mines (Operations) Bpk h/a Western Holdings Goudmyn v Labuschagne (1999) 4 LLD 766 (LAC)
Jooste v Score Supermarket Trading (Pty) Ltd (1999) 20 ILJ 525 (CC)
Manga v Zhauns (WE37116)
Rodney Allan v New Line Piping cc (KN34803)

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