Article 2/2023

An employee suffered severe injuries, whilst on duty and working on a machine. It is common cause that the employee’s injuries were caused by the negligence of senior management whilst under the influence of alcohol.

What are the principles applicable when injuries at work are caused by the negligence of senior management as opposed to when same are caused by a co-employee or third party?

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In Clementz v Millbo Paper CC and Others (2021) 32 SALLR 35 (GJ), Gilbert AJ followed, so it is
submitted, the following correct approach:

  • in terms of s35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993
    (‘COIDA’), an employee, or any dependent of such employee, is not entitled to damages in
    respect of an injury or disease against the employee’s employer and the employer is not liable in
    this regard, save to the extent as set out under COIDA
  • in terms of s35(2) of COIDA, for the purposes of s35(1), the following shall be deemed to be an
    employer:

    • an employee managing a business, in control of a business or any branch or department
      thereof
    • an employee who has the right to engage or discharge employees on behalf of the employer
    • an engineer appointed to be in charge of machinery or a person appointed to assist such
      engineer in terms of the Minerals Act
    • a person appointed to be in charge of machinery in respect of regulation in terms of the
      Occupational Health and Safety Act
  • when negligence is caused by the employer (including the senior management referred to
    above), and if COIDA is applicable, this would lead to increased compensation
  • however, on the other hand, if a co-employee caused the said injury (or a third party), then, in
    terms of s36 of COIDA:

    • the employee may claim compensation ito COIDA and may also institute action for damages
      against the third party and
    • the compensation commissioner or employer, by whom compensation is payable, may
      institute action against the third party for recovery of compensation that he is obliged to pay
      in terms of COIDA

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.