Employee Right (continued)

Last month we looked at the stringent rules introduced in the COID Act to encourage people to adhere to the provisions of the Act.  We also discussed the reason for this namely to ensure that the injured employee is well looked after.  Not only for humanitarian reasons but also because his or her common law rights were taken away by legislation (COID Act) and replaced by a no-fault rule liability for employers and the State.  If you want to refresh your memory, read last month’s contribution.
I concluded that, in my personal opinion, that the State has to a large extent failed its duty towards the injured employee. I also noted that little is being said by the community about the status quo, and that this might be in line with other trends which can be labelled as politically correct.

The Rights of the Injured
The workers’ compensation legislation has created certain statutory benefits for persons who have sustained a work related accident or contracted an occupational disease.  These benefits are:

  • Medical expenses
  • Payment of Total Temporary Disablement (TTD) benefits if the injury or the disease resulted in temporary disablement;
  • Payment of Permanent Disablement Benefits if the injury or disease resulted in a permanent disablement;
  • Burial expenses and pensions to dependants if it was a fatal accident or occupational disease; and
  • Increased Compensation where the injury or the disease was due to the negligence of the employer or a senior manager in the hierarchy of the organisation.

    I will next month supply you with statutory benchmarks to enable you to evaluate the present performance level of the workers’ compensation legislation administrators.  Let us first see what the legislator’s intention was.

The functions of the Compensation Commissioner
Let’s look at role of the Compensation Commissioner and staff before we proceed.  Before an employee can be awarded the benefits listed above, the Compensation Commissioner or one of his authorised staff members must decide whether the injury sustained or disease contracted was an “accident” or an “occupational disease” as defined in the COID Act.  After having received the prescribed notification by the employer, sections 45 and 46 amongst others, prescribe the duties of the Compensation Commissioner to enable him to accept the claim (rather than repudiate it) when in doubt.  The space does not allow me to quote verbatim the two sections of the Act but trust me the legislator’s intention is clear.  The whole idea boils down to the fact that the onus is on the Compensation Commissioner to investigate and if necessary convene a formal hearing to verify that the case reported is an accident or disease for which the employee should be compensated.

It is common cause, judging from our case law and other legal authorities, that the Compensation Commissioner’s duties in this respect are administrative – not judicial.  I will not bother you with the legal technicalities of the different roles, but I urge you remember one principle, the Compensation Commissioner’s main role is to assist employees who were injured on duty.  The mechanisms created by the COID Act such as sections 45 and 46, were deliberately done to ensure that the injured employees are fairly treated.  These mechanisms were never meant to be judicial procedures to try and nail the employee in the belief that all people are corrupt!  Therefore the majority of claims can be dealt with without having formal hearings or other in-depth investigations.  The problem is, how many “problem” claims are at present being dealt with by using sections 45 and 46?

Thought for the Month
The main objective of workers’ compensation legislation is to provide SECURITY for the injured or sick employee.  The benefits are paid from a statutory Fund and not by the employer who might not be in a financial position to compensate the injured employee.  Also very important is that the security is enhanced by the fact that the employee will be compensated even if the employer has not paid assessments or worse has not even bothered to register.  Can the employee still rely on this so-called security?

Next month will be the last instalment in the employee-rights saga.  I will give you several benchmarks to evaluate the system.  If it does not meet the criteria it will be for you, the employers, who are funding this scheme to decide what can be done.

Till next month.
Louis van Assen