The winter of discontent

I was astounded when a client recently asked me whether the strikers, referring to the people demanding higher wages and salaries were covered by the COID Act when injured during a march to some or other destination.  He mentioned that one of them could be injured when hit by a rubber bullet or an object from a rubbish bin when busy trashing the streets.  You must admit that it is sometimes a risky business doing nothing.  I gave it proper thought and although I am striking at present, I explained the situation to him

You start off by pointing out what the definition of an accident is.  According to the Act, I said to the person who posed the question; an “accident” is defined as follows:
“Accident” means an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee;”
It simply means that to be injured on duty you must sustain the injury or contract the occupational disease:

  • “out of  the employment”;
  • “in the course of the employment” and
  • in such a way as to “sustain a personal injury”

If these three elements are all present it is an accident for which the injured will be compensated.  So when you are on strike, for whatever reason, and I am referring to legal strikes in terms of the labour legislation, are you covered by the provisions of the COID Act?  Let us test the situation by taking the three elements listed above into account.

The courts over the years have decided that “out of” simply means that the accident should be work related.  In the Khoza case 1.Williamson JA said that it means that it must be the employment “that brought the workman within the range of …the hazard …causing injury”.  It means that there should be a causal connection between the employment and the injury.  I do not think that anyone will say you are striking for relaxation or for reasons that are not related to employment but I stand to be corrected.  Remembering the basic principle of “no work no pay” I think I can safely say that striking for a higher income, at present a common occurrence, can be regarded as work related as envisaged by the definition in the COID Act.
The next issue at stake is whether an injury sustained during the strike action is something that has occurred “in the course of the employment” of the employee.  The courts over the years have decided that this phrase means that that the employee is busy doing what he or she was contractually employed to do.  There must be a degree of control exercised by the employer over the manner in which the employee is performing the duties to be performe 2.  Do I need to say more about this topic?  A strike means that the employer has lost control; in fact the employee is refusing to perform the duties for which he was employed.  It might be legally correct in terms of labour legislation but it does not alter the common law principles of the contract of service.

The small print is that the second element of the definition was not fulfilled. We can thus safely say that it cannot be regarded as injury on duty when the striker meets with an unfortunate traumatic incident.  All the elements of the definition above must be present to constitute an accident; the second one is missing, not doing what the person was employed to do.

In the spirit of the present withholding of performance, I do not need to discuss the third element namely to sustain a personal injury.  I must, however, admit that it is something which I am very happy not to do, i.e. not discussing it.  The reason is that a large number of employers are unfortunately ignorant regarding the subject which opens an opportunity for me to write an article about it.

Before you think that you are now wise about injuries on duty when people are striking let me leave you with a thought to ponder.  Employers do take measures to employ temporary workers in case of strikes, the so called scab workers.  We read in the papers about these persons being victimised, and even attacked by the strikers and injured.  The assaults on them and persons refusing to strike resulting in injuries are solely due to the fact that they are working in spite of the striking action.  Are these people covered by the COID Act, that is can we say that these are statutory injuries (accidents) on duty?  Let me know what you think.  I look forward to your response.

Till next month.