WCA Column August 2008

“The perfect bureaucrat everywhere is the man who manages to make no decisions and escape all responsibility. ” BROOKS ATKINSON, “Once around the sun” 1951

Penalties and other punishments
In the COID Act there are numerous provisions to keep the employer on the tip of his toes, such as:

  • If you do not submit your Return of Earnings on time you will be penalised for this offence. A penalty will appear on the Notice of Assessment to inform you that the transgression has not gone unnoticed. I presume that these Notices are still  part of the process;
  • If you fail to pay your assessment punctually as required, rest assure you are in for an additional amount in the form of interest. Further penalties for your failure will also be levied. I will not bother you with the relevant sections of the COID Act but trust me it is in the COID Act and the effects will be severe if you as the “client” do not adhere to the provisions of the COID Act;
  • The late reporting (or failure to report) of accidents in the prescribed way to the Compensation Commissioner can cost you dearly. I have no idea what the present formula in that office is for the calculation of the penalty but what I do know is that the Compensation Commissioner has a wide discretion in this regard. So it is important that employers should be wary of the provisions and related procedures regarding reporting of accidents.

The above examples are only a few provided for in the Act, there are numerous other penalties that can come into play.  Judging from press releases and other forms of communications originating from the officials of the Labour Department, they are serious about keeping employers in line. Trite phrases such as “zero tolerance” with offenders are bandied about which create the impression that guilty employers will really encounter the wrath of the civil servants administering the legislation. So please familiarise yourself with the legal as well as the administrative aspects of workers’ compensation in your business.

The object of the penalties
So why were all these severe measures introduced to prod you to act in accordance with the provisions of the COID Act?  The answer to that is actually a very simple one. The legislator has through the workers’ compensation legislation taken away the employee’s common law rights in toto. The common law allowed the injured employee to sue the employer for common law damages if the employer through negligence caused the employee to be injured. Under the present and previous Acts an injured employee, or in the case of a fatal occupational injury or disease, the employee or the dependants are under no circumstances allowed to institute a claim for damages against the employer. “Under no circumstances” as stated above means exactly that, there is no exception. The Compensation Commissioner has stepped in as the party to compensate the injured or diseased if it is occupationally related. This liability is an absolute one as the question of who has caused the injury is not relevant for the payment of the compensation. There is, therefore, a duty on the employer to ensure that his or her duties in terms of the COID Act are performed, this is after all the trade-off for the total indemnity of any claim against the employer by the employee. That is also the reason why the state must ensure that the employee is not worse off because of the loss of the common law rights.

The other side of the coin
Taking away rights from someone as a trade-off places an obligation on the state to see to it that the quid pro quo is delivered as was intended. So policing the employer as the Compensation Commissioner does it, is quite appropriate. The legislator has, however, advanced one step further when legislating that the State in the form of the Compensation Commissioner will in the place of the employer award and pay the compensation provided for in the Act. You guessed it, how is the Compensation Commissioner that was “appointed” by the state performing to complete the trade-off cycle? That, and who is monitoring the bureaucrats supposedly appointed to perform the latter function is the problem.
I leave it up to you to evaluate the state’s performance as to whether they are delivering the service as enthusiastically as they are policing employers to perform. All I can say is that, in my experience, the CC’s performance in delivering a service to the injured employee – the most important party – is dismal, to put it mildly. Next month I will list a few of the employee’s rights that were created by statute in place of those taken away.  Then you can judge for yourself how fair the trade-off is at the moment. Are we to see another state insurance scheme drifting to the depths of the one that is now by own admission technically insolvent?  You know the one – with the scaled down benefits and to which you contribute when you fill up?  Surely there must be someone around who must start to protest the inequity between those paying and the arrogance (inefficiency?) of the bureaucrats who are supposed to deliver the service.

(To be continued)

Till next month.