Article 2/2022

Liability of an employer in terms of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’)?

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The facts of Churchill v Premier, Mpumalanga and Another (2021) 32 SALLR 27 (SCA) are briefly as follows: the employee worked at the Premier of Mpumalanga, employed as the chief director: policy and research.  Protest action regarding labour disputes, so organised by NEHAWU, had occurred at the premises and in the building where she worked.  She was assaulted and mistreated by the protestors and eventually evicted from the premises in a humiliating and degrading manner.  The employee claimed that the injuries were caused by the negligence of her employer not to take steps or, alternatively, took inadequate steps to ensure the safety of the employees in the workplace.  On the other hand, the employer raised a special plea claiming that the employees’ claim constituted an occupational injury making her entitled to compensation in terms of COIDA and, therefore, her claim is to be excluded in terms of section 35(1) of COIDA.

How did the supreme court of appeal deal with this issue?

  • in terms of s22(1) of COIDA, if an employee meets with an accident resulting in his disablement or death, such employee (or dependents) is entitled to benefits under COIDA
  • an accident is defined as meaning: ‘…an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee’
  • in MEC for Health, Free State v DN 2015 (1) SA 182 (SCA), it was held that there is no bright-line test to determine whether or not the accident arose out of and in the course of an employee’s employment and each case must be dealt with on its own merits – in this matter, a rape perpetrated by an outsider on a doctor on duty at a hospital was found not to arise out of the doctor’s employment because the risk of rape is not incidental to such employment
  • in the aforesaid matter, the SCA held that the employee’s employment brought her within the zone of hazard, giving rise to her injuries – however, the risk of rape was not incidental to her employment
  • on the basis of the above approach, the SCA in casu concluded that the closer the link between the injury sustained and performance of the ordinary duties of an employee, the more likely it is that it can be said that they were sustained arising out of and in the course of employment – on the basis of this approach, the SCA in casu found that the protest action turning violent and resulting in assaults are not risks incidental to employment and, therefore, do not arise out of and occur in the course of employment.  This meant that the employee’s claim was not covered by COIDA and she was entitled to institute a civil claim, based on delict, against her employer.

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).