How to Deal with Injury at Work

An injury at work is in itself an unpleasant experience but is also an experience that can hold consequences for both employer and employee. The Occupational Health and Saftey Act (“OHASA”) imposes a duty on the employer to provide a working environment that is safe and without risk to the health of its employees and in like fashion imposes a duty on the employee to take reasonable care of his health and safety while at work. Where such an injury occurs during the course of employment, the Compensation for Occupational Injury and Diseases Act (“COIDA”) makes provision for an employee to claim compensation for damages suffered, provided the correct procedure is followed.

All employers have a legislative duty to provide and maintain a working environment that is safe and without risk to the health of their employees. In order to fulfil this duty the employer must, amongst others, as far as is reasonably possible:

  • Provide and maintain systems of work, plant and machinery that are safe and without risk to health and safety of employees.
  • Take reasonable steps to eliminate or mitigate any hazard or potential hazard to the safety of employees before resorting to personal protective gear.
  • Make arrangements for ensuring the safety and absence of risk in connection with the production, use, handling, transporting etc. of hazardous substances.
  • Establish what hazards are associated with any work, article, substance, plant or machinery which is performed or used and establish the precautionary measures to be taken in respect of such work.
  • Provide information, instructions, training and supervision as may be necessary.
  • Not permit any employee to do any work, handle any substance or article or operate any plant or machinery unless the precautionary measures, as contemplated above, have been taken.
  • Take all necessary measures to ensure that the requirements of the OHASA are complied with by every person in employment or on the premises and under the control of the employer.
  • Enforce such measures as may be necessary in the interest of health and safety.
  • Ensure that work is performed and that plant and machinery is used under the general supervision of a person trained to understand the hazards associated with it and who has the authority to ensure that precautionary measures taken by the employer are implemented.

What happens then in the event that an employee is injured in the workplace?

The employee has a duty to:

  • Take reasonable care of the health and safety of himself and other people who may be affected by his acts or omissions.
  • Cooperate with his employer with regards to any requirement imposed by OHASA to enable that such requirements are complied with.
  • Carry out any lawful order given to him and obey the health and safety rules laid down by his employer or by anyone authorized thereto by his employer.
  • As soon as possible report any situation which is unsafe or unhealthy that comes to his attention to his employer, or health and safety representative.
  • Report to employer if he was involved in any accident/incident which may affect his health or safety and which has caused an injury to himself.

In the unfortunate event that an employee suffers a personal injury, illness or death as a result of or during his service with his employer, such employee, or his dependants, has a right to claim compensation in terms of the COIDA from the Compensation Commissioner.

The same goes for an employee who suffers from any disease which originates from or is contracted in the course of his duties.

The procedure to follow in such circumstances is the following:

  • A written or verbal notice of an accident must be given by the employee or on his behalf to the employer as soon as possible after the accident occurred.
  • The employer must report the accident to the Compensation Commissioner in the prescribed manner within seven days after having received notice of the accident.
  • The Compensation Commissioner will make such an inquiry as is necessary, after having received notice of an accident, to enable a decision to be made on any claim or liability in terms of COIDA.
  • The injured employee must furnish the required and prescribed information and documents and must submit himself to an examination by a medical practitioner designated by the Compensation Commissioner or employer, if so required
  • A claim for compensation in terms of COIDA must be lodged within 12 months after the date of the accident or death. The Compensation Commissioner shall then consider and adjudicate on a claim for compensation.

Unfortunately if the accident is attributable to the serious and wilful misconduct of the employee, compensation may not be paid in terms of COIDA unless the accident results in serious disablement or death and leaves a dependant who is wholly financially dependent upon him. In this case an exception may be made by the Compensation Commissioner.

If you have been injured at work and unsure as to what steps to take, make sure you talk to your employer, labour representative or a legal advisor to obtain the correct advice and guidance in submitting a claim for compensation.

Written by Nongcali Zibi, Candidate Attorney, Phatshoane Henney Attorneys: Commercial Department

Edited by: Creamer Media Reporter
 

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