Basic Rights Of Employees

“A man’s respect for law and order exists in precise relationship to the size of his pay check”  Adam Clayton Powell, 1967
During the election period and subsequent festivities we were all reminded of the basic human rights that are bestowed on us by the RSA constitution. Having been ad nauseam reminded of these rights I thought it worthwhile to refresh my memory regarding all these wonder cures for unreasonable administrative conduct towards the man in the street who is in dire need of assistance. Just take note for example of what the Bill of Rights has to say on the subject of public administration:
195. Basic values and principles governing public administration

1. Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

1. A high standard of professional ethics must be promoted and maintained.
2. Efficient, economic and effective use of resources must be promoted.
3. Public administration must be development-oriented.
4. Services must be provided impartially, fairly, equitably and without bias.
5. People’s needs must be responded to, and the public must be encouraged to participate in policy-making.
6. Public administration must be accountable.
7. Transparency must be fostered by providing the public with timely, accessible and accurate information.
8. Good human-resource management and career-development practices, to maximise human potential, must be cultivated.
9. Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.

2. The above principles apply to ­
1. administration in every sphere of government;
2. organs of state; and
3. public enterprises.
3. National legislation must ensure the promotion of the values and principles listed in subsection (1).
4. The appointment in public administration of a number of persons on policy considerations is not precluded, but national legislation must regulate these appointments in the public service.
5. Legislation regulating public administration may differentiate between different sectors, administrations or institutions.
6. The nature and functions of different sectors, administrations or institutions of public administration are relevant factors to be taken into account in legislation regulating public administration

   Considering these wonderful sentiments, the injured employee should indeed feel comfortable that he or she will receive all the co-operation from the State organ responsible for the well being of the unfortunate man or woman. The “organ” responsible for compensating the injured worker in this case is the Office of the Compensation Commissioner. I will not even bother to bore you with the backlogs, failure to publish statutorily required notices such as medical tariffs for the current year, unanswered mail and telephones calls, etc, etc.  I want to touch on a less known issue that you are not perhaps familiar with.
   When the employee can prove that his accident and resultant permanent disability can be attributed to the negligence of the employer or the management of the organisation, he or she is entitled to what the COID Act terms as “Increased Compensation due to negligence of employer” (Section 56), over and above the usual benefits. Specific rules to obtain this “Increased” compensation were published in the Government Gazette, containing amongst other time limits for the specific steps to be followed. If one is to believe the above citation from the Bill of Rights one would take it for granted that these Rules are adhered to. Not so; they are blatantly ignored in almost every application. Waiting for 4 years for a reply to an application or a reply in terms of the Rules is the normal course of events.  So how can the employee be assisted? Typically by approaching an attorney. 
   No prizes for second-guessing my next point: but how many injured employees can afford an attorney?  For that matter how many can afford an advocate (that is to say should he be briefed in accordance with all their protective rules and regulations)?  I have not met one such an employee.  So whilst the State is spending money on other priorities, there is not any money available to assist the employee to obtain what he is legally entitled to. Personally I have no problem with the underlying philosophy of section 46(2).  The effect for the injured is however a devastating one.  This is especially true for employees objecting against decisions or applying for increased compensation.  In both instances causality, regarded as one of the most difficult subjects in our law, is the crux of the matter,. The employee cannot attempt to deal with this in proving his case. Of those who have, most have failed to obtain a favourable decision. If an attorney cannot be afforded who will represent the objector/applicant?  This is a serious shortcoming in the COID Act.  Legal advice and a fair hearing are basic rights, a fact which is totally ignored in the administrations of many Acts. This is a matter that should be addressed to speedily rectify the injustice.   At the same time how about the new brooms seeing to it that civil servants perform their duties in line with the principles of the Bill of Rights?
   The final nail in the coffin for increased compensation is that the OHSA statutory investigations into accidents are so flawed or even worse, not even carried out by experts, as they should be.  If an inspection is indeed undertaken, it is not uncommon for the employee to be refused a verbatim copy of the proceedings (not the department’s recommendations!) despite the fact that he was present at the enquiry (or should have been).  I wish I knew how many people loose their benefits because of this arrogant attitude.

   For many injured employees, the Bill of Right is a joke.  The above confirms once again that only the rich can afford to legally enforce their rights.

   Till next time.