When injury or disease strike at work
28 February 2021 | Jacques Marais
It often occurs that employees are injured while performing their duties in the course of their employment. When they are injured or contract a disease, they suffer damages and are entitled to compensation. In such instances, the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) applies.
The aim of COIDA is to compensate individuals for disablement or death, caused by injuries or diseases sustained or contracted in the course of their employment. COIDA also compensates families of breadwinners killed in the course of their employment.
Who can claim from COIDA?
Any employer or employee, whether employed temporarily/casually or permanent, and who, as a result of a workplace/work-related accident or disease is:
- Disabled or
- Become ill
From the above it is clear that no compensation will be payable if the individual’s injury, death or disease was not caused in the course of their employment.
COIDA does stipulate certain exclusions for individuals who want to claim and include:
Employees disabled for less than three days, anyone receiving military training or performing military service including members of the South African National Defence Force, members of the South African Police Service, workers guilty of wilful conduct (unless seriously disabled or killed), anyone employed continuously outside of South Africa for at least 12 months, anyone predominantly employed outside of South Africa and only employed on a temporary basis in South Africa and an independent contractor hiring a subcontractor to perform work.
In the past, workers employed in private households were also excluded from claiming compensation from the Compensation Fund. This, however, was found to be unconstitutional by the Constitutional Court in the matter of Mahlangu and Another v Minister of Labour and Others (CCT306/19)(2020) ZACC 24 resulting in domestic workers now being able to claim compensation from the Compensation Fund, provided that they are registered by their employers.
What type of compensation may be claimed?
The amount of compensation payable is dependent on, firstly, the individual’s earnings and secondly, the level of disablement as a result of the injuries or disease. Compensation can be claimed for the following:
- The individual’s income;
- Their medical expenses and/or
- Funeral expenses
In order for compensation to be paid, it must be noted that a claim must be lodged within 12 months of the onset of the disability. Compensation will also not be paid in the event that an individual falsely declared that they do not suffer from any disability or had not previously suffered from any disability in the past.
In terms of Section 35(1) of the Act, employers are protected against any claims instituted by injured or sick employees. Section 35(1) states:
“No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee’s employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death”.
The constitutionality of this section was challenged in the matter of Jooste v Score Supermarket Trading (Pty) Ltd (CCT15/98)  ZACC 18 on the basis that it infringes on, among others, the constitutional right to equality before the law, the right to equal protection of the law and the right not to be unfairly discriminated against. It was contended that employees are deprived of the common law right to claim damages against their employers, putting them in a disadvantaged position in relation to non-employees. The Constitutional Court, however, found that Section 35(1) is not unconstitutional.
The effect of this provision and case law is that an employee cannot sue his employer for any occupational injuries or diseases, even in the event that the employer is the wrongdoer. Such employee is however entitled to institute a claim against the Compensation Commissioner in terms of COIDA.