It is common cause that when an employee gets injured during the course of employment, it will be classified as an injury on duty. Any employer with one or more employees employed must register with the Compensation fund. The Compensation fund for Occupational Injuries and Disease Act (COIDA) 130 of 1993 regulates and enforces the process of reporting and claiming from the fund. All employees registered with the Compensation fund will be able to claim. However, members of the South African National Defence Force (SANDF) and South African Police Services (SAPS), independent contractors and employees working outside of the Republic of South Africa for longer than twelve (12) months at a time will be excluded from claiming from the fund.

It is noteworthy that in the past, employees employed in private households were also excluded from claiming compensation from the fund. However, this provision was found to be unconstitutional in the recent matter between Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24, resulting in domestic workers now being able to claim, provided that their employers register them. COIDA aims to provide compensation in cases of an injury on duty. When an employee is registered by their employer, the employer is protected against civil claims from the employee as stipulated in Section 35(1) of COIDA. The Constitutionality of this section was challenged in the matter of Jooste v Score Supermarket Trading (Pty) Ltd (CCT15/98) [1998] ZACC 18. The employee was of the opinion that their constitutional right to equality before the law, their right to equal protection of the law and their right not to be unfairly discriminated against were violated. The Constitutional Court, however, ordered that no right was violated and that Section 35(1) was not unconstitutional. Thus, COIDA will prevent employees covered by COIDA from suing their employers for damages in terms of common law.

Once an injury on duty occurs, there is an obligation on the employee to report the accident to the employer. Still, there is also an obligation for the employer to report the accident to the Compensation Commissioner. As stipulated in Section 38 of COIDA, the employee should report the accident to the employer as soon as possible after such an accident has happened. It is of utmost importance that an employer reports the injury on duty to the Compensation Commissioner within seven (7) days after the occurrence of the accident, as prescribed in Section 39 of COIDA. Should the employer fail to report the injury on duty, the employee will be deprived of their right to be compensated for either temporary disability of three (3) months or more, permanent disability, medical expenses or death benefits. Furthermore, suppose no notice is given to either the employer or the Commissioner within twelve (12) months after the date of the accident. The employee will forfeit their right to compensation, as the claim will be prescribed as per Section 44 of COIDA.

It has been emphasised how important it is to report any injury on duty to the Compensation Commissioner, however when the employer or the employee fails or delays to act as per COIDA, it is construed as a criminal offence, and the Commissioner may impose a penalty in terms of Section 99 of COIDA, which provides that  “any person that is convicted of an offence in terms of this Act, shall be liable to a penalty or imprisonment for a period not exceeding a year.”  Furthermore, as stipulated in Section 39 subsections (6) and (7), if the employer fails to report an injury on duty with the Commissioner within the prescribed period or manner, they will be liable to a penalty of either ten percent (10%) of the declared annual earnings of a particular year or the total amount of compensation payable plus interest from the date of the incident.

It is recommended that all employers should report an injury on duty within the prescribed period to avoid any penalties and prescription of the claim. The effect of these provisions can have severe financial and reputational implications on the employer.

Article By: Anjoné Müller-Brand
Dispute Resolution Official – Pretoria