Ricochet News

Injured on duty? Here's what to do

By Goldberg & de Villiers - Jan 20, 2017
Injured on duty? Here's what to do

When an employee is injured at work, in the normal course of events, in terms of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) the employee is barred from instituting action against his employer. This relates to instances where the injury results in disablement or death.

The employee must therefore seek relief as allowed for in COIDA. The employee will therefore be entitled to claim certain relief in the event of his injury being classified as an injury on duty. He will not be entitled to claim any additional damages/compensation from his employer, meaning that all claims for damages such as for pain, suffering and loss of amenities is excluded.

The law does however allow the employee to institute action for the balance of his claim, whatever that may be, against any entity and/or third party who is not his employer. This means that he may institute action against any individual including co-employees and/or supervisors etc of for the balance of his claim. The employee will however have to establish that the third party was at fault which caused his injury.

In those instances where the employer is at fault, then the employee may enjoy a claim for increased compensation in terms of Section 56 of COID.

The Compensation Commissioner is empowered by virtue of the provisions of Section 22(3)a to reject the claim in the event that the employee's injury was caused on account of his own serious and wilful misconduct.

It is not that the employer escapes liability by virtue of the provisions of COIDA. The employer may still be held accountable from the perspective of criminal liability.

An independent contractor and/or his employees would not be barred from instituting action against a mandator given that Section 35 of COID will not apply to them.

Employers must ensure that they are registered with the Compensation Commissioner and that their working environments are safe to avoid injuries on duty.

For labour law advice contact Tracey Mouton on 041 501 9832 or e-mail [email protected]. Also visit www.goldbergdevilliers.co.za.