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

November 25, 2024

What are the principles governing the vicarious liability of an employer for acts committed by an employee in breach of the EEA, in terms of s60 of the EEA?

November 25, 2024

The scenario is as follows: only employees working at a bakery and not employees working at a mill were party to the disputes when referred to conciliation.  At arbitration, the union wanted to join the employees working at the mill.

Is such joinder permissible?

November 25, 2024

What is the test for unfair discrimination formulated in Harksen v Lane and consistently applied subsequently by the various courts, including, recently, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU (2022) 33 SALLR 277 (LC); (2022) 43 ILJ 1584 (LC)?