What are some of the important principles governing the applicability of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’) in the above circumstances as opposed to the employer’s civil liability?
An employee arriving at work is faced with a group of striking workers, who proceed to abuse her emotionally…
A doctor is raped at work whilst performing her duties…
A teacher is shot at school during a tea break…
What are some of the important principles governing the applicability of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’) in the above circumstances as
opposed to the employer’s civil liability?
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In Churchill v Premier of Mpumalanga and Another (2021) 32 SALLR 27 (SCA) and Erasmus v
Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the courts identified, inter
alia, the following appropriate approach:
- in terms of s22(1) of COIDA, if an employee meets with an accident, resulting in such employee’s
disablement or death, such employee or dependants of same shall be entitled to the benefits of
COIDA, subject to the provisions of COIDA - it is important to realise that an accident is defined as meaning same arising out of and in the course of an employee’s employment, so resulting in the injury, illness or death of the employee
- therefore, the said injury, illness or death is to be directly linked to the accident in which same
was sustained - the exclusionary principle entails that, in terms of s35(1) of COIDA, an employee or any
dependant of such employee shall not have a claim for damages in respect of an injury, disease
or death, against such employee’s employer and such employer shall not be liable in the above
regard except to the extent as set out under COIDA - in order to determine whether COIDA is applicable, it is, as already indicated above, essential to
determine whether or not the injury, illness or death arose out of and occurred in the course of
the employee’s employment. In the above regard, the following is a summary of factors that
should not be utilised to determine whether or not the above occurred:- a single test is not feasible nor desirable
- mere presence at the workplace will not suffice
- foreseeability of the risk is not definitive
- the fact that the employer brought the employee into the zone of hazard during the course of
employment is also not sufficient to establish the causal link
(Ex parte Workman’s Compensation Commissioner: in re Manthe 1979 (4) SA 812 (E))
- rather, the following approach should be adopted:
- it is irrelevant that the employment brought the employee within the zone of hazard, but
what has to be determined is whether or not the injury, illness or death is incidental to the
employee’s specific employment (i e with reference to the questions posed above, whether
or not the rape is incidental to the employment as a doctor or whether or not a robbery is
incidental to employment as a teacher)
- it is irrelevant that the employment brought the employee within the zone of hazard, but
(MEC for Health, Free State v DN 2015 (1) SA 182 (SCA)
- the above approach was followed in Churchill where it was stated that the said industrial
action (I e being emotionally abused by striking workers) was not incidental to the
employment of the employee as chief director: policy and research, so employed by the
premier of Mpumalanga (the said approach was also followed in Erasmus)
(SALLR)
