Archive for category: Coida

Employees are frequently concerned about the matter of whether the Compensation Commissioner will cover them if they were involved in a motor vehicle accident that occurred while travelling to/from work.

COIDA stipulates that the accident should ‘‘arise out of and in the course of an employee’s employment’’. It should have occurred while the worker was on duty and should have been part of the workers scope of duty. 

This means that an employee who is travelling to/from work is not “on duty” and therefore would not be eligible to claim from the Compensation Commissioner. However if employees are, provided free transport by their employer and are driven by their employer or another employee then Act will cover them.

According to Section 22(5), of the COID Act, ‘‘the conveyance of an employee free of charge to or from his place of employment for the purposes of his employment by means of a vehicle driven by the employer himself or one of his employees and specially provided by his employer for the purpose of such conveyance, shall be deemed to take place in the course of such employee’s employment’’.

Workers who are drivers or who have to be transported as part of their work could be covered by the provisions of COIDA if the accident occurred ‘‘in course and scope of employment’’ and the following criteria are met: :

• Transport must be provided free of charge by the employer
• The vehicle must be driven by the employer himself or an employee.
• The employer must have control over the transport such as keeping records such as a logbook.
• The vehicle must be on a direct route

Another commonly asked question related to transport is whether an employee is covered when in a motor vehicle accident that took place in transport arranged by or paid for by their employer.

In the case that your employer asks you to use your own private vehicle or to make use of public transport to carry out your job during working hours, you will be covered. This however does not apply when travelling from home to work or when commuting from work to home.

In a case last year, The Supreme Court of Appeal delivered a judgement which provides for an employee to sue their employer for damages sustained outside of the boundaries contemplated by the Compensation for Occupational Injuries and Diseases Act, 130 of 1993(COIDA).

In this case a female employee was raped by an intruder on hospital grounds. The employee was a doctor who was employed by the Free State Department of Health.  She did not attempt to get compensation from COIDA but opted rather to take civil action against her employer since, COIDA section 35(1) exempts the employer from compensating the employee (or dependants) for the recovery of damages in respect of any “occupational injury or disease resulting in the disablement or death of such employee” except under the provisions of COIDA.

The employer, believed that this was a claim for COIDA and that COIDA limits the employee’s common law right to sue the employer.

The Supreme Court of Appeal asserted that each case must be dealt with on its own facts, and forwarded that employees should, as far as possible, claim compensation that is due under COIDA.  In this case the parameter fencing was under repair, the elevator was non-functional and the lights were not working, thus making the environment dangerous to employees.

The court sent the message that employees especially, women, require that their employers provide reasonable protective measures against rape.

Occupational Diseases in Mines and Works Act (ODMWA)
The Occupational Diseases in Mines and Works Act provides compensation for occupational lung diseases in miners and ex-miners only. It is administered by the Medical Bureau for Occupational Disease (MBOD) which falls under the Department of Health Chief Directorate: Non Communicable Diseases. The MBOD is responsible for benefit medical examination of miners and ex-miners. ODMWA provides for post mortem benefits (through the National Institute for Occupational Health’s Pathology Section) for miners if an occupational disease is found, even if it was not the cause of death. ODMWA pays lump sum benefits based on the level of impairment and does not make any further pension provision. The low-fence for lung function loss is 35% for compensation to be paid out. All medical expenses including follow-up related to the treatment of the lung disease is paid by the mine owner(s).

COIDA covers occupational injuries and diseases in all industries including those from the mining sector that are not covered by ODMWA; such as noise-induced hearing loss. COIDA pays lump sums for permanent disability under 30% and pensions if the permanent disability is proved to be more than 30%. The level of impairment needed for compensation is 20%. This Act is generally considered to be more generous in terms of compensation payouts. The Act, however, does not make provision for post-mortem diagnosis but would still consider a case for compensation if an occupational disease is found at post mortem or if it is the cause of death.(Source:NIOH)

Employers are required to submit all relevant forms to the Compensation Commissioner. This includes liaising with doctors and coordinating the process of claiming from the Compensation Fund. Some employers act irresponsibly by failing to report injuries or occupational diseases to the Compensation Commissioner. As a result of this, the employees are forced to pay their own medical bills and have to initiate their own claims with the Compensation Fund. Some employees fail to report the injuries in an attempt to avoid paying the extra levies.