I received a letter from a contract worker who had suffered an injury on duty when he was accidentally knocked over by a forklift.
He was initially assigned to work in the offices and was told that he would be given additional duties later on. In the fourth month of his employment, he was ordered to count stock (gas cylinders) in a warehouse on the other side of the premises.
Until this point he had not received any training in the company’s site rules and was not given any reflective clothing.
He chose the shortest route across the site, an area in which several forklifts were operating.
As he approached, one of the forklifts started reversing. He was given no warning as there were no traffic controllers on site, nor signs indicating pedestrian routes.
To make matters worse, the vehicle did not make the distinctive beeping sound which they usually do when reversing and it had no rear-view mirrors.
The driver did not see him and although our reader tried to avoid being hit, the forklift changed direction and bumped him over. It was later determined that his leg had been crushed and broken in four places.
He was in constant pain and was told by his doctor that he would be unable to resume his duties for at least four months. It has not yet been determined whether there will be any permanent damage.
As he is the sole breadwinner, our reader wants to know what he can expect from the company.
Contract workers are entitled to 75% of their salary. However, employers cannot allow them to be off sick indefinitely and usually, after such an extended period of absenteeism, will call for an incapacity hearing.
At this hearing the employer, after examining the doctor’s report, will determine whether the employee’s injuries have stabilised and whether he or she will be able to return to work.
It is the employer’s responsibility to explore all possible alternatives to dismissal, bearing the following factors in mind: the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement.
If it is found that an employee is likely to be permanently incapacitated, the act makes provision for the employer to secure alternative employment for the worker or to adapt his or her duties to accommodate the disability.
However, if the employee’s incapacity is of a permanent nature, the possibility exists that he or she can be dismissed. As with all dismissals, it must be substantively and procedurally fair.
If the worker’s duties cannot be adapted, the employer must consider whether he or she can be placed in another position, even if it is at a lower salary. If the employee refuses to accept an alternative position, he or she may be asked to resign and there will be no further claim against the employer.
If the employer is unable to accommodate the worker, the company will have to let the worker go due to ill health.
Our reader will be able to claim Workman’s Compensation if it is found that there is a permanent disability. Had the reader lost his life in the accident, his wife and children would have a maintenance claim against the Compensation Commissioner.
In that case, the commissioner will determine a monthly amount to be paid to his children (until the age of 21) and spouse (until her death). Funeral expenses will also be covered.
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Full Stop Communications
On behalf of:
Booysen & Rossouw Attorneys