As you may all know civil suits by employees against their employers is prohibited in terms of section 35 of the COID Act.

Like indemnities, the deprivation of common law rights is always controversial. Many have lamented its existence particularly as is the amount of compensation paid is regarded as hopelessly inadequate. The fact that the Compensation Commissioner Office is a mess is also a factor. This prohibition was even considered to be unconstitutional by the Judge President of the Eastern Cape High Court before being referred to the Constitutional Court where, ultimately  in Jooste v Score Supermarket Trading, it was ruled to be within the limits of the Constitution. So the position is today is in the event of a workplace accident, if someone is an employee as defined, they cannot utilise their common law right to sue their employer (the corporate body as well as certain humans listed in section 56 of the COID Act).

Since various pieces of legislation contain various definitions of an employee, the question arises as to which definition is applicable, thus triggering the prohibition on civil suits by employees against their employers. While the definition as contained in the COID Act emphasises an express or implied contractual relationship with a person as well as direct, tacit or in kind remuneration, the OHS Act definition of an employee includes persons not necessarily remunerated or with whom a contractual relationship exists but also persons who work under the direction or supervision of an employer or any other person.

To further compound matters, section 1 of the OHS Act excludes a Labour Broker from the definition of an employer but with reference to the now repealed Labour Relations Act, 1956 (Act No. 28 of 1956). By inference all labour supplied by a Labour Broker will be employees of the employer and not the Labour Broker. However, the current Labour Relations Act (LRA Act) in section 198 makes no mention of the term 'Labour Broker', using instead the term 'Temporary Employment Service'. (TES). A Temporary Employment Service is defined in that Act as an employer and to further complicate matters, should there be a conflict between the Labour Relations Act and any other piece of legislation for example the OHS Act, the LRA Act takes precedence. (Save the Constitution) So where do we stand? In terms of the LRA Act persons supplied via a TES to employers are the employees of the TES. The COID Act still makes reference to Labour Brokers also defining them as employers in their own right. In terms of the LRA and COID Acts  persons (labour) supplied to other persons and companies are  therefore 'non employees' of the 'recipient' employer and they – or their dependants for that matter - enjoy the common law right to sue them  if they are injured in a workplace accident.

The issue was recently addressed in Rieck v Crown Chickens (Pty) Ltd t/a Rocklands Poultry [2005] an Eastern Cape High Court decision. Subscribers can click on the case above for the full Law Report. A cashier, who working under the control of Crown Chickens (Pty) Ltd but whose services were 'supplied' by a Labour Broker was abducted by armed robbers and wounded when security guards fired shots at the getaway car which contained her and the robbers. She instituted a civil case against Crown Chickens for compensation. The latter raised, inter alia, the defense that she was, as an employee of the company, precluded from instituting such a claim in terms of section 35 of the COID Act. The court found that her injury was an occupational accident as defined in the COID Act and that the security guards who wounded her had acted unreasonably and therefore negligently. The case also dealt with the issue of vicarious liability whether, if an employee acts negligently during the course of his employment and caused someone injury, the company could be held liable. With reference to the COID Act definition of an employee it was held that she was an employee of the Labour Broker and therefore not prohibited from suing Crown Chickens (Pty) Ltd. Also that Crown Chickens (Pty) Ltd was liable through the negligence of its employees, the security guards who fired on the getaway cat wounding the cashier. Extract......   

'The definition of an employer contemplates that a person is an employer if he, she or it employs an employee in terms, obviously, of a contract of service. In order to ensure that all employees (except those specifically excluded), receive the protection of the Act, and to eradicate grey areas, the Legislature has expressly included certain categories of persons in the definition: because of the rule that the State is not usually bound by its own statutes, the State is expressly included as an employer; because of the uncertainty that may be created when an employee's services are lent or let by an employer to another, subsection (b) of the definition provides that in such circumstances, the "permanent" employer, rather than the person to whom the employee's services are let or lent, remains the employer for purposes of the Act; and to clarify the position when labour brokers are involved in providing labour to businesses, subsection (c) of the definition makes it clear that, irrespective of where the employee's services are rendered, and who controls the employee's day-to-day conduct in the workplace, the labour broker remains the employer for purposes of the Act. This is logical for two reasons: firstly, the contract of service is entered into by the labour broker and the employee and there is no contractual nexus between the employee and the person to whom he or she provides services; secondly, the labour broker is the employer who pays contributions to the Compensation Fund, and not the person to whom the services are rendered'.

So there you have it. The question as to whether persons supplied by Labour Brokers enjoy the right to sue natural and juristic persons (employers in which they are placed) has been posed to me at each and every workshop I have presented. I should be borne in mind, however, that the decision is not binding on provinces outside the Eastern Cape and, although improbable, may even be appealed.

Other news. Not much. Not a peep out of DoL as far as OHS matters is concerned. Are they treading water until new OHS legislation is promulgated? Perhaps they are idly sitting around awaiting rescue from the Mine Health and Safety Inspectors once the two bodies, MHS Inspectorate and the weak Inspection & Enforcement Service (I&ES), are merged. Will that happen in our lifetime? Interesting enough Radio Highveld reported on 29 September 2005 that 'A report on oil giant Sasol is expect to be released in February next year. The team selected by Labour Minister Membathisi Mdladlana has started its probe into the company's health and safety management system. This follows a series of explosions at different plants in the last year some of them fatal. The Labour department’s Page Boikanyo says the team has been given clear guide-lines on what to investigate'. No other broadcaster mentioned this and I wonder whether this refers to the section 32 Formal Inquiry that is under way or something different. If it is the latter one wonders where they find the expertise to probe into Sasol's health and safety management system? There is also nothing to this effect on DoL's website.

I hope that those of you 'plug' into my website at www.klasslooch.com have seen that I routinely publish interesting OHS orientated court cases on the home page. I change them usually every two weeks. The full text of these cases is only available to Subscribers. And in this regard I wish to welcome ACSA on board as a Subscriber.

The last two court cases contained some interesting decisions. In City Council of Pretoria v De Jager [1997] (A) the Supreme Court of Appeals ruled that the (then) Pretoria City Council had taken adequate steps to protect the public against an excavation while in Kruger v Carlton Paper of SA (Pty) Ltd [2002] (A) the Supreme Court of Appeals ruled that a warning sign posted outside a dangerous electrical installation was sufficient and reasonable. (Subscribers can click on the cases above for a full Law Report). I'm on a roll as I have quite a few more interesting court cases up my sleeve. I have also started publishing UK and Aussie OHS criminal convictions off their respective websites. (The so-called ‘Sin Lists).

I will deal with these cases in detail at my forthcoming swansong OHS Legislation Workshops. I also intend to focus on OHS contracts with mandataries at these workshops and I will demonstrate that, through contracts, you can manipulate and mould the OHS Act to suit your own needs. It will relieve a lot of OHS stress without even getting your fingers sticky!

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I apologise to Subscribers if they receive this Newsletter twice as I am combining your Special Newsletter with my OHS Chat & Skinner Newsletter. If you get it twice just reach for the delete button. Subscribers, I hope you enjoyed my last Newsletter entitled 'The Prosecutorial Mind and Construction Regulations'. Here is an extract for you others. 'The principal contractor can be charged for any of the crimes committed by the contractor and the client, in turn, for any of the crimes of the principal contractor. In actual fact the client can be charged for the crimes of either the principal contractor or the contractor. This can be done in terms of section 37 for OHS Act for statutory crimes only (OHS Act) and not for the common law crime of culpable homicide. In the scenario above, the tenacious prosecutor argues that there is sufficient linkage to an act or omission on the part of the client and principal contractor to link them to the death of the deceased. Had the principal contractor insisted upon and approved a documented Risk Assessment and Fall Protection Plan, the accident may not have occurred. The same argument could be used had the client, in conjunction with the principal contractor, ensured the Health and Safety Plans were implemented as envisaged by the Construction Regulations'.

Hopefully see you all soon.

Regards

Raynard