The Workman’s Compensation Fund provides compensation for employees who get hurt or sick at work – or for death as a result of these injuries or diseases.

Health and safety in South Africa is governed by the Occupational Health and Safety Act, which sets out the duties and obligations that rest on an employer to ensure a healthy and safe work environment.

Should an employee be injured during the course and scope of his employment, the Compensation for Occupational Injuries and Diseases Act (COIDA) will regulate any compensation due.

Employers are obliged to contribute to a national insurance pool, which in turn is responsible for the payment of compensation for injury and/or loss suffered as a result of an accident at work.

Such contribution is for the employer’s account and it is for this reason that section 35(1) of the act excludes any civil liability on the part of employers for injuries sustained while on duty.

Situations may arise where it becomes important to establish who exactly the employer is for purposes of an injury sustained on duty as well as the operation of section 35(1) of COIDA. This is often the case where labour is provided by temporary employment services or labour brokers.

Our reader, who works in a warehouse, was unable to work for four months after a shelf collapsed on her. Her injuries necessitated several operations.

Her services were supplied to the warehousing company through a labour broker.

She wanted to know who her employer was according to the law and if she had any recourse in terms of civil claims.

In a recent decision of the Supreme Court of Appeal the impending legal responsibility for injuries on duty to which employers expose themselves when using employees supplied by labour brokers, came under the spotlight.

In this case, Company A used a labour broker to procure the services of a cashier.

Although she (the cashier) performed particular duties for Company A, she was being paid by the labour broker and had a contract of employment with them (the labour broker).

During the course of an armed robbery, she sustained a gunshot wound inflicted accidentally by an employee of Company A. The result was that she (an employee of the labour broker) instituted civil action against Company A.

Company A raised the defence that she became their employee when her services were hired to them and that they were therefore protected against any actions for damages under section 35(1) of COIDA.

The court dismissed the appeal and ruled that – based on the correct interpretation of the definitions of “employer” – an employer is the person with whom the employee had a contractual relationship even if the employee performs contractual obligations for someone else.

Therefore Company A, as the client of the labour broker, could not rely on section 35(1) to be exempted from any action for damages.

In our reader’s case, the labour broker is her employer as she receives remuneration from them in terms of a contract of employment.

The warehousing company is the labour broker’s client and although our reader has been working at the warehouse for more than five years, she still remains an employee of the labour broker.

She is therefore not precluded from instituting civil action against the warehousing company.
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Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.

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