Did the Trade-off become a Rip-off?

Common Law
As previously discussed, in the absence of any workers’ compensation legislation the employee could sue the employer if his or her injury was caused by the negligence of the latter.  That was the risk that the employer faced when employing people.  The risk of common law damages to injured employees was a real one that could financially ruin an employer.  It was for this reason that the State intervened and created a State Fund to compensate the injured employee.  The difference in the underlying principle under compensation law compared with common law was that the employee would be compensated irrespective of who caused the employee’s injury.  Therefore the trade off became: the employee no longer needed to prove that the employer caused his injury BUT he or she was now barred by legislation from suing the employer even if the employer was negligent.
However, because the legislators realised that the amounts that would be paid in no-fault compensation would be far less than the common law damages that could have been awarded, they included a provision in the Act that allowed for increased compensation to be paid to seriously (permanently) injured employees where the injury was caused by the negligence of the employer.

Section 56: Increased Compensation
The section of the COID Act that makes provision for the increased compensation to employees is section 56 in the current legislation.  It is a lengthy provision and it involves many intricacies.  Legal experts will point out in handbooks on the subject that this is the remnant of the common law that applied before the advent of the legislation.  To some degree this is true, but there are major differences between the old common law and the section 56 provisions; a fact proven by the numerous High Court decisions that have been taken in respect of this section over the years.  In fact when one studies these decisions it soon becomes apparent that section 56 is much more intricate than the common law.  It also makes sense that this section would be more complicated or have more provisions else it would simply be a “loophole” into the common law and the Compensation Act would have no place.
An employee seriously injured and permanently disabled is therefore at a disadvantage because of the complexities of the legislation. However, he or she is subjected to a further disadvantage: the lack of knowledge amongst members of the legal profession. Legal practitioners are much more clued up with the common law principles and know comparatively little of the provisions of section 56.
Therefore, in short the trade off has lead to the fact that most employees do not even know of the existence of section 56 and if they do know, have little chance of succeeding because it is such a specialised piece of legislation.
Refer for example to the statistics in the Compensation Commissioner’s annual reports over a number of years and, from the number of applications for increased compensation reported, you would think that the South African workplace must be the safest in the world.

Is there a solution to the problem?
It is clear that employees are not aware of their rights if they are seriously injured due to employer negligence. So what has gone wrong?  Ask yourself these questions and consider the issues at stake:

  • Does anyone in his right mind think that an ordinary worker will be familiar with the section 56 procedures and the case law associated with it?  If you believe so, consider how few are the lawyers that are familiar with these procedures and legalities;
  • Even if you do apply for section 56 increased compensation and submit the required documentation to the office of the Commissioner, you seldom if ever get a response. Ask me I have dealt with it.
  • Therefore, a trade off that envisaged fairness to all parties has obviously failed. Not because the amounts that can be obtained I terms of section 56 aren’t fair – speaking from experience they can be substantial. It is because the number of employees or dependants forfeiting this unwittingly is substantial, by that I mean literally thousands of employees;

The Department of Labour attempts to be as united and seemingly, statutorily speaking, as integrated as possible.  In fact, as far as the COID Act was concerned the Commissioner was stripped of her accountability, by making the Director-General the accounting officer (see the 1997 Amendment Act).  Consider also that the Commissioner’s website, which at one stage was the only one in the whole department, was incorporated in the later one for the department. And there are several other actions that suggested the demonstrative unity of the organisation.
So this is a clue as to where the solution to the section 56 application lies:  Years ago all OHSA serious accident investigations were recorded verbatim and copies of the investigations were passed on to the Commissioner’s office which after scrutinising it, then followed it up and initiated the legal action that followed.  As matters stand today, not only has this process been abandoned but it is practically impossible to obtain even an OHSA section 32 Formal Investigation report on behalf of an employee from this close knit department! The fact that the injured employee was the reason for the “investigation” does not appear to be relevant.
In the interests of the injured employee and his or her dependants, the earlier procedures must be brought back.

Until such time as qualified and properly trained inspectors are appointed to do accident investigations in terms of the OHSA, the employee will have little or no benefit from the common law “remedies” in the COID Act.  I do not know of any employer who is going to plead guilty to negligence and thus afford the employee the opportunity to claim his or her rightful compensation.  The state created the Act ostensibly to assist and it is, therefore, the duty of the state to perform its duty.  To expect a labourer to know the law better than an ignorant legal advisor is a poor joke.  It is easy to threaten employers on a website after an accident but the real work is following through.

A safe and enjoyable festive season to all of you.