During a temporary secretarial assignment at a government department our reader slipped on a wet floor in the guest room, injuring her back and neck.
She immediately made contact with the employment agency that had placed her to notify them of the incident.
The owner told her not to say anything about her fall as this could put the agency at risk of losing their contract with the department. She was also told that she had no recourse as she was just a temporary employee.
She received no sympathy and the owner also came across somewhat threatening. This made her decide to keep quiet about the incident and she only took some pain medication.
However, the following day she was in so much pain at work that her manager noticed something was wrong.
She proceeded to tell the manager about the accident, who said there was nothing that they could do as the cleaning was outsourced to a private company. The manager suggested that if she wanted to pursue the matter, she should take it up with the cleaning company.
Our reader has since completed her temporary assignment and has left the department and the agency.
Her first question is whether she should pursue the matter in her personal capacity or whether the onus lies on the employment agency and the department to report the matter?
The Compensation for Occupational Diseases Act 61 of 1997 is very clear that both the department and the employment agency should have reported the matter to the Workman’s Compensation commissioner immediately after the employee had informed them of her accident.
At the same time, the reader should have undergone a thorough examination by a doctor to determine the extent of her injuries. This medical report should then have been attached to a completed WCL2 form and sent to the commissioner.
Thereafter the doctor would have had to submit regular progress reports, advising the commissioner whether her injuries had stabilised.
While receiving treatment, she would have been eligible for 75 percent of her basic salary, paid to her by the Workman’s Compensation Commission.
If it was determined that she had permanent disabilities affecting 30 percent or less of her body, she would have received compensation in the form of a lump sum. If the injuries affected 31 percent or more of her body, she would have received monthly payments.
Although the employee has left the department and the employment agency, she can still pursue the matter in her personal capacity within 12 months of the initial accident.
This can be done by completing a WCL3 form and reporting the accident directly to the Workman’s Compensation commissioner, who will then force the relevant employer to supply the necessary documentation in order to process the claim.
Our reader’s second question is whether she was an “employee” even though she was just on a temporary assignment, and whether the government department was in fact her “employer”?
For the answers to this question, we will look at the relevant definitions contained in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as amended by the Compensation for Occupational Diseases Act 61 of 1997.
In layman’s terms, the act stipulates that an employee is a person who works under contract, for remuneration, for an employer, and includes –
• a casual employee; and
• a person provided by a labour broker.
An employer is defined as any person, including the State, who employs an employee, and includes –
• any person controlling the business of an employer;
• if the services of an employee are temporarily made available to another person by his employer; and
• a labour broker.
Our reader was thus without any question an employee while she was temping at the government department and they her employer.
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Booysen & Rossouw Attorneys in Port Elizabeth specialises in labour related legislation. The firm also handles injury on duty (IOD) cases and deals with all other aspects of the law.
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