Chapter 6 - Labour Law
The Compensation Fund provides compensation for employees who get hurt at work, or sick from diseases contracted at work, or for death as a result of these injuries or diseases.
The Compensation Fund is covered by the Compensation for Occupational Injuries and Diseases Act (No 130 of 1993) (COIDA) and the Compensation for Occupational Injuries and Diseases Amendment Act (No 61 of 1997). The Compensation Commissioner is appointed to administer the Fund and approve claims of employees. Where an employee is entitled to receive compensation from the Compensation Fund, the Fund, and not the employer, will pay the employee.
Go to the Department of Labour website for more information on the Compensation Fund: www.labour.gov.za
Employees who are drivers or who have to be transported as part of their work may be involved in motor vehicle accidents while working. Motor vehicle accidents at work are covered by the Road Accident Fund Act. The accident must be reported to the Compensation Commissioner, and will follow the normal Compensation procedure, but the money will be paid by the Road Accident Fund.
Any person who is employed or being trained by an employer, and is injured or gets sick on or because of the job can claim compensation. The following employees cannot claim compensation from the Fund:
The Act says an employer has to pay compensation to the injured employee for the first 3 months from the date of the occupational injury. Thereafter, the Compensation Fund will pay. The Compensation Fund will repay the employer for the money that was paid.
Employers pay into the Compensation Fund once a month (based on a maximum amount of earnings of R277860.00 per employee). Employees do not pay anything to the Fund, so employers cannot deduct money from employees' wages for this. The following employers do not have to pay into the Fund:
These employers are still covered by the Act and claims are made to and decided by the Commissioner. The only difference is that the payouts are made by the insurance fund of the employer (not by the Compensation Fund).
Occupational diseases are illnesses caused by substances or conditions that the employee was exposed to at the workplace. Schedule 3 of the Compensation for Occupational Injuries and Diseases Act sets out the working conditions and diseases caused by these conditions that are covered by the Compensation Fund. An employee can claim compensation if exposed to these working conditions and then getting the related disease. If a disease is not listed then employees can claim compensation only if they can prove that the disease was caused by conditions at work and not by some other factor. Medical evidence and reports will have to be submitted to the Commissioner. It may also take some time for a disease to become obvious and in such cases employees can claim compensation if they are no longer at a workplace so long as it falls within the time limits for lodging claims.
The Commissioner will approve or reject the claim. Only if the Commissioner approves the claim, will you get compensation (for temporary or permanent disability) and your medical expenses will be paid. If the disease gets worse after a period of time, you can apply to have your compensation increased.
Injuries covered by the Compensation Act are only those that occur as a result of or at work. Compensation is paid for temporary and permanent disabilities that lead to a loss of earnings.
If a motor vehicle accident happens while an employee is doing their job, then they can get compensation from the Compensation Fund. But if they are injured in a motor vehicle accident caused by someone else's negligent or unlawful driving, even if this is on the job, they can also make a third party claim from the Road Accident Fund. The money received from the Compensation Fund will be taken off the third party payment. For example, if the Road Accident Fund agrees to pay damages of R15 000, but the Compensation Fund has already paid R10 000, then the employee will only get R5 000 damages from the Fund.
An employee cannot sue their employer for damages if they were injured on the job. But if the employer caused injury to an employee while they were NOT on the job, then the employee could sue him or her.
Compensation is paid for getting injured at work or for diseases caused by work. There are four main types of compensation payments. These are:
Compensation is always worked out as a percentage of the wage the worker was earning at the time the disease or injury is diagnosed. If the worker is unemployed by the time a disease is diagnosed the wage they would have been earning must be calculated.
The Compensation Fund does not pay for pain and suffering, only for loss of movement or use of your body.
Temporary disability means the employee does eventually get better. If an employee is off work for 3 days or less, no compensation will be paid (the employee can claim sick leave from the employer). If the employee is off for more than 3 days, the employee gets compensation which also covers the first 3 days. Temporary disability can be total or partial:
For an occupational disease, use the wage at the time of the diagnosis and not at the time when the employee first got exposed to the disease. If the employee is now unemployed, use the wage that he or she would probably have earned if still employed. Compensation for temporary disability will be paid for up to 12 months. If the condition of the employee has not improved after 12 months, the Commissioner may agree to continue payments for up to 24 months. After 24 months the Commissioner may decide that the condition is permanent and grant compensation on the basis of permanent disability. The Commissioner also pays all medical accounts, including medicine for which accounts must be submitted.
Permanent disability means that an employee never fully recovers from the injury or sickness. A permanent disability can completely prevent an employee from working, or it can just inconvenience an employee. Most serious is called 100% disability, and least serious is called 1% disability. A doctor must write a medical report about the disability. The Commissioner, with the help of a panel of doctors, works out the degree of disability. The degrees of disability are set out in Schedule 2 of the Compensation for Occupational Injuries and Diseases Act. Some examples are:
Compensation for permanent disability is paid either as a monthly pension or as a lump sum:
The formula for the monthly pension is:
This amount will be paid once a month for the rest of the worker's life.
This amount will be paid once only and there will be no further payments.
Compensation can be claimed by the widow or dependants if an employee dies as a result of a work-related accident or disease.
Claimants for death benefits must submit certified copies of the following documents:
Who can claim Compensation when an employee dies in the course and scope of duty?
The total monthly pension per family cannot be more than the pension the deceased worker would have received if he/she was 100% disabled (i.e. 75% of the monthly wage).
All the medical expenses of a worker will be paid for a maximum of two years from the date of the accident.
If a employee is injured, dies or contracts an occupational disease because of the negligence of the employer, or a defect in machinery or equipment, the employee can get extra compensation for temporary or permanent disability. Any employee who is under 26 years old at the time of an injury or disease will get extra compensation.
An application for additional (increased) compensation must be made on a form W930 within 24 months of the injury, The Commissioner can extend the period if good reasons exist.
The compensation office waits until it has all the forms and only then does it pay.
The compensation office sends the money to the employer who gives it to the employee.
Lump sum -The money is paid to the employer. If an employee is no longer working for the same employer, they must leave details of their address with the employer.
Pension - This is paid out monthly for the rest of a person's life. The disabled employee can decide where the compensation office must send the pension, for example to a bank account. Pensions are always back-paid to the date of the accident.
If employers do not send in the forms or the claims takes long, employees must contact the nearest labour centre and report it.
© This material may not be used for profit without permission from ETU
ETU can not respond to requests for legal advice, contact the organisations listed under Resources.