In last week’s Top Tip Tuesday we addressed the importance of the exercise of the “stop work authority” on health and safety grounds to prevent workplace injuries and fatal accidents. We discussed the judgment handed down in the matter of National Union of Metalworkers of South Africa on behalf of Sipho Nkosi & 4 Others, and PFG Building Glass Proprietary Limited & Others under case number JR 2099/2022 (PFG Judgment). Last week’s Top Tip Tuesday can be found here.
In the PFG Judgment the Court essentially held that a “stop work authority” had to be exercised on valid health and safety grounds after an appropriate procedure had been followed. A logical question on the facts of the case is whether, if employees were injured walking to or from the meeting venue, or while they were at the meeting, these injuries would be occupational injuries, and would therefore be subject to compensation.
The answer is complex but includes an assessment of what constitutes an “occupational injury” for compensation purposes under the provisions of the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 (COIDA).
Where an injury is an “occupational injury”, compensation is paid to the employee or the employee’s dependants (where the employee has passed away) as provided for in COIDA, and, importantly, the employee or the employee’s dependants cannot institute a civil claim for damages against the employer by virtue of the provisions of Section 35 of COIDA. What constitutes an “occupational injury” is therefore important in determining whether statutory compensation is payable under COIDA, or whether the employee and/or the employee’s dependants can, instead, institute a civil claim for damages (which may be substantially higher than COIDA compensation), against the employer.
What constitutes an “occupational injury” has been the subject of many judgments, with one of the most notable judgments being that of the Supreme Court of Appeal in the matter of MEC for the Department of Health, Free State Province (924/2013) [2014] ZASCA 167 (8 October 2014) (Department of Health Judgment).
The key question was whether a claim for damages by a doctor against the hospital where she was employed based on her being sexually assaulted while on duty was excluded by the provisions of Section 35 of COIDA. The Supreme Court of Appeal found that sexual assault bore no relation to her employment, and it was not incidental to her employment. The Court held that, therefore, the doctor’s employer (the hospital represented by the MEC), was not protected by the provisions of Section 35 of COIDA, and the doctor could claim damages from her employer. The Supreme Court of Appeal focused on the measures to be taken to protect an employee’s health and safety and confirmed that sexual assault is not an “accident” or “occupational injury” as contemplated in COIDA.
This is particularly important given the scourge of gender-based violence in South Africa. The Mine Health and Safety Inspectorate has also taken active steps in relation to management of gender – based violence, safety and security for woman in the mining industry, by publishing a Guidance Note on 2 August 2024 which requires the implementation of a comprehensive plan to comply with the Guidance Note.
Although handed down on 4 March 2021, the Supreme Court of Appeal judgment in Churchill v Premier, Mpumalanga (889/2019) [2021] ZASCA (4 March 2021) (Churchill Judgment) addresses the important question regarding whether injuries sustained during protest action, constitute “occupational injuries” for the purposes of COIDA.
Ms Churchill was injured and mistreated in the course of a protest by trade union members at the premises where she was employed. The key question was whether her injuries constituted an “accident” as defined in Section 1 of COIDA, and whether the “accident” arose out of and in the course of her employment. If the answer to this question was positive, then compensation would be payable under COIDA, but Ms Churchill would have no civil claim for damages against her employer, the Mpumalanga Government, represented by the Premier.
Ms Churchill’s injuries included physical injuries and treatment that was humiliating and degrading, which resulted in her presenting with post-traumatic stress disorder described as being of “significant intensity”.
Ms Churchill sued the Premier and the Director-General in the Office of the Premier, alleging that her mistreatment at the hands of the protestors, resulted from her employer’s negligence. She alleged that no steps, or alternatively, inadequate steps were taken to ensure that the safety of employees in the workplace, and had they taken reasonable or adequate steps to do so, the assault on her would have been avoided.
The Premier and the Director-General raised a special plea, and argued that her claim arose from an “occupational injury” for which she was entitled to compensation in terms of COIDA and was therefore precluded by Section 35 of COIDA, from instituting a civil claim against her employer.
The Supreme Court of Appeal concluded that being assaulted is not ordinarily incidental to employment and the fact that the place where the assault occurred was the workplace, and the perpetrator/perpetrators were co-employees, does not change this position and the Court found that Ms Churchill’s injuries did not arise out of her employment.
This meant that Ms Churchill was free to institute a civil claim for damages against her employer.
The Churchill Judgment demonstrates, once again, that certain consequences arising from being in the workplace, cannot be incidental to employment, even if they occur in the workplace, paving the way for civil claim for damages against employers who do not take appropriate measures to protect the health and safety of employees.
Should you require any more information, please contact Warren Beech at warren@bv-inc.co.za.
Disclaimer: This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.