Court case highlights employers

Behind the suit filed by the Legal Resources Centre (LRC) over the delay by the compensation commissioner in processing the claims of up to 250 000 people lies heart-rending stories of shattered dreams. Two workers whose lives have been ruined by accidents in the workplace are Thys Boer and Stanley Sadiki. Neither accident was reported to the commission by the employer. Neither has been compensated. Such stories contrast with victories that have resulted in some families of deceased workers receiving as much as R400 000 in the past six months. Unfortunately, due to their families' fears, their particulars cannot be published. Most cases have their roots in the failure or refusal by employers to complete reports. The commissioner's office has created a special section called the temporary claims division to process all claims that are not supported by employers' reports. Paula Howell of the LRC said: "Many workers affected have serious injuries that have incapacitated them. It means they go for months without payment. Worse still, it means that valuable skills are lost and employers can continue to cause injury to employees without the threat of sanction." She said in spite of the huge powers of the commissioner's office, it had done nothing. "For instance, they can enter offices of the employer and demand information, they can interview witnesses, they can talk to police, talk to doctors. In most cases, the office has shirked its responsibility. This means the employee is stuck because the employer won't co-operate." The department of Labour's spokesperson, Page Boikanyo, refused to comment. Vic van Vuuren, Business Unity SA's spokesperson, said: "While we want to encourage our members to comply with the laws governing the compensation fund, we should recognise that they have been frustrated by the bad administration at the fund. We want to have an effective and efficient administration, hence our support for recent action taken against the commissioner," Van Vuuren said.

Injured worker personifies struggle faced by many.

One man personifies the struggles of countless workers to get payment from the compensation fund for injuries sustained on duty. He is Stanley Sadiki of Atteridgeville. He is the first applicant in a landmark case filed by the Legal Resources Centre against the compensation commissioner, the minister of labour and the director-general for the delay in processing thousands of claims registered with the fund, dating from 1992. Like many in his position, he finds himself penniless and, most distressingly, disabled due to an accident. "As a security guard at Nghala Guards I was posted on my guardroom to provide safety for a detention centre in Cullinan. I was hit by an ambulance and immediately fell unconscious, and only recovered 12 hours later at the Pretoria Academic Hospital. "When I later asked my employers to submit a report to the compensation commission, they refused, saying that I was not a full-time employee but a contract worker," Sadiki told Business Report. "I was seriously injured, with my right arm broken, my left shoulder dislocated, right knee and leg broken, and my left ear badly cut. "I have had four serious operations since that accident on April 15 2001. I had a number of pins inserted into my leg." Sadiki said his right arm and leg were still painful and he relied on pain killers. "I cannot, for example, hold my right arm above my head for more than a few seconds and this is something I am told by my doctors that I will have to live with for the rest of my life." Sadiki said he had earned R1 800 a month. "Due to injuries I sustained, I was unable to continue working. During my two-year recovery my employer did not pay me." His problems included being unable to pay rent. "Fortunately, my uncle was in a position where he could allow me to stay with him for free. "For the duration of my stay, my uncle's wife provided me with the nursing care I required. I was a burden on them both financially and otherwise." Sadiki said he would like to be paid because he wanted to support his six-year-old daughter, Ndamulelo, who currently lives with his parents in Mashau village, Limpopo.

Legal Resources Centre takes up fight for one of many stranded in the system.

Just a few years ago, Thys Boer was an energetic man full of plans to improve the welfare of his family. Today he is in a wheelchair, being washed and fed like a baby - the result of an accident when he fell from a roof while installing electric wire rods on October 9 2001. His wife Pauline said he sustained three fractures in the back, damage to the liver and fractured ribs, and was pierced by a nail at the back of the head. Since that fateful day, he coughs repeatedly and has to use a towel to wipe the sputum. Despite his condition, his employer, MM Steel Construction, has not registered the accident with the compensation commission. His is just one of the many cases that prompted the Legal Resources Centre (LRC) to file a suit on behalf of people whose claims had not been processed. The commission processes claims resulting from injuries and diseases sustained in the workplace. It has over R11 billion in reserves. At the time of the accident, Thys earned R4 140 a month. Today he has no income. The couple have two children aged 16 and 19. Pauline said the company's management castigated her for taking up her husband's fight. "Why did you go to the compensation commissioner? Do you know what you are doing?" she was asked. She was even told "she's too clever". She said the offer by the company to pay R100 000 towards his pension and R10 000 for medical expenses had not materialised. "[The company] only paid for a few months and stopped in 2002. I do not know what happened to that offer. All in all, [it] paid less than R6 000," she said. Paula Howell, a paralegal at the LRC, said: "Bearing in mind that the worker cannot sue the employer in terms of the Compensation for Occupational Injuries and Diseases Act, it seems this is an attempt to buy the worker off." The company was not available for comment. Pauline, who earns R2 200 a month, says she spends R149 on tablets every month and about R200 on medicine. Other expenses include R600 on transport. She also has to pay rates and services, buy food and take care of her children's education. "Most times we survive from the help we get from my sister. If she wasn't there, only God knows," she said.

Long waits are poor compensation for injured workers.

A visit to the offices of the compensation fund in Pretoria reveals the desperation that drives dozens of people to travel from as far afield as Mpumalanga and North West to expedite the processing of their claims. The offices are full of people patiently waiting, some on crutches, some with bandages around their hands or arms, some limping. While some are victims of employers who have not registered with the fund, others frequent Compensation House at the corner of Soutpansberg and Hamilton streets simply to speed up the processing of their claims. Many who spoke on condition of anonymity said the delay in going through their claims by the compensation commission was cause for concern. Also apparent was a lack of clarity about procedures to be followed when registering a claim. Equally important is for workers to know their rights when they have been injured on duty or contracted diseases due to their employer's negligence. Page Boikanyo, the department of labour's communication chief, said there was a "dire need" to inform the public about the compensation fund. With this in mind, the department would soon be launching a countrywide campaign, he said. This long overdue campaign is a must because many claimants have very serious injuries, which remove them completely from the workplace. Failure to address these concerns means valuable skills are lost and employers can continue to cause injury to employees without even the threat of sanction. Boikanyo detailed the steps to be followed in case of injury at work or contraction of an occupational disease. He said accidents could be reported at the nearest office of the department. When a worker suffers a work injury, the employer must within seven days complete a report of the accident and submit it to the commissioner's office. Sadly, it takes on average 90 days for employers to report accidents. The employer must then collect all medical reports, which must also be forwarded to the commissioner's office. If the employer fails to report an accident in which an employee is injured, the worker can report the accident personally. Failure by an employer to report an accident is an offence. According to the Legal Resources Centre (LRC), which has filed a suit on behalf of 250 000 people whose claims have not been processed, thousands of employers fail or refuse to complete employers' reports, making it difficult for those affected to have their claims processed. The case also shows the frustration and powerlessness of employees in the wake of bureaucratic intransigence. The LRC's Paula Howell said: "Failure of employers to timeously submit reports of work accidents results in some claimants waiting for years to receive payment, while others never receive compensation at all however serious and debilitating their injuries may be." The law also compels employers to notify the compensation commissioner of occupational diseases suffered by workers within 14 days. An occupational disease is an ailment contracted in the workplace due to exposure of the employee to certain agents or environmental conditions. In the case of deaths from workplace injuries, the commissioner must be supplied with documentary proof indicating the cause of death. If the employee leaves a widow or widower and children under 18 years old a marriage certificate and birth certificates must accompany a claim for compensation. The compensation scheme places employers in a critical role. Not only are they expected to complete a report on an accident, they are also required to collect, and forward, all medical reports relating to the treatment the employee received soon after the accident. Employers are also expected to pay the employee 75 percent of his or her salary for the first three months off duty. It is no exaggeration to say the success of the compensation scheme depends on the co-operation of the employer. When employers fail to submit reports of accidents it is normal practice for the commissioner's office to subpoena them to obtain the required reports. The compensation fund falls under the department of labour. Its board includes representatives of government, organised labour and business and it has over R11 billion in reserves.

Court case highlights employers' negligence in accident reporting.

A recently-filed application in the high court to force the Workmen’s Compensation Commissioner to act on unresolved cases may force employers to comply with health and safety legislation. The Legal Resource Centre in Pretoria filed an application as part of a lawsuit on behalf of four applicants at the end of August. Engineering News spoke to paralegal Paula Howell about the case, and what it aims to achieve. Howell says subpoenas were served on acting deputy-general of the Department of Labour Vanguard Mkosana, Labour Minister Membathisi Mdladlana, and Workmen’s Compensation Commissioner Bongi Magoja on August 25. The legal centre’s application was filed in the Pretoria High Court the following day. When Engineering News spoke to Howell, the legal centre was waiting for an intention to oppose the application to be filed by the respondents. The case originated after a claimant died before his claim was processed. He had been told prior to this that his claim could not be processed as the fund could not take it further without an employer’s report. “The case is an attempt to tackle the administrative shortcomings within the Commissioner’s office that robs thousands of claimants of their right to compensation for injury on duty because employers have failed to complete reports of accidents.” The claimant, Soloman Silinda, died from septic shock on a hospital bench in Shoshanguve, north of Pretoria, in July this year. One of the three applicants in the present lawsuit that relates to unresolved claims is Silinda’s wife. Silinda’s unresolved claim was only one of the estimated 50 000 claims that have not been processed by the fund. But, Howell says, this figure is based on the fund’s annual report and could be incorrect. “I’ve heard figures of 250 000 unresolved claims, and more.” She says claims become a ‘temporary claim’ when employers have neglected to complete a report of the accident. The claims are then put aside, with the intention that the fund will investigate and resolve them. “But no investigation ever takes place, and the fund sends subpoenas to get employers to comply.” The employers ignore the subpoenas, knowing that no follow-up action will be forthcoming, she says. When claimants attempt to follow up on their claims they are told that the claims cannot be processed without an employer’s report. “There are people with serious injuries and nothing happens.” Now the legal centre is applying to force the fund to finalise claims, some older than ten years, and to compel employers to complete their part of the claim process. “The fund has the legislative means to force employers to comply, but they don’t have procedures in place.” She says there seems to be a mindset that the fund is acting on behalf of the employers and not the employees. Because of the fund’s backlog of unresolved cases, employers are aware that legislation is unlikely to be enforced against them and they are likely to continue unsafe practices. “There is no fear of retribution or a comeback from these practices.” Howell says that employees are unable to sue employers under South Africa’s common law and are unwilling to report unsafe practices for fear of losing their jobs. This is despite bodies such as the Commission for Conciliation, Mediation and Arbitration and the labour courts. She hopes that the class action will also highlight the need for companies, especially unscrupulous ones which ignore legislation, to comply with health and safety regulations. Part of the problem of unresolved claims is that the workers who file claims are usually illiterate manual workers who do not know how to fight the system. The issue is further exacerbated by hospital staff who follow hospital procedure in contravention of the law and refuse to fill in medical reports until the employer has submitted one. Workers’ claims are also compromised when they return to a hospital for a report, long after the injury, only to find that their files have been destroyed by the hospital. Silinda was shot while at work four years ago; he, his wife and three children moved out of a large home and into a one-roomed shack after the shooting as they were unable to afford their previous accommodation. He had emigrated from Mozambique to South Africa and was applying to become a South African citizen at the time of the shooting. As he was not yet eligible for a disability grant, his only hope of money was compensation from the Workmen’s Compensation Fund. He died without his claim being processed. “The inability of the commissioner’s office to finalise so many claims brings into question the existence of a statutory compensation scheme, which is a pity as it is beneficial to both employer and employee.” The Department of Labour’s senior executive manager of communication, Monwabisi Maclean, says the department has not yet received the application from the court. Therefore Minister Mdladlana cannot respond on hearsay. Maclean confirms the existence of temporary files, but says that investigations proceed in accordance with legislation. “When an alleged accident comes to the attention of the commissioner that the employer has not yet reported, a temporary claim is opened and the matter is investigated as sanctioned by the Act.” If employers do not report the alleged incident, they will be subpoenaed by the provincial Department of Labour office. “Penalties for late reporting are imposed on those employers failing to comply with the Act. “The Compensation Fund has delegated the investigations of temporary claims to the provincial offices of our department, which will investigate claims and report them to the compensation fund for processing.” He says that the legal centre’s claims of the number of outstanding cases are incorrect as, during the last financial year, only 5 600 temporary claim files were opened. Delays are caused by variables other than administration problems. Payments of benefits are subject to conditions that include the accident being reported by the employer, the claim being supported by the necessary medical evidence, and liability being accepted by the compensation commissioner. “If all external stakeholders, such as employees, employers and service providers, complied with the process, delays in payment of claims will be reduced and we will not even be opening temporary files. Maclean says that the Silinda case is problematic. “The case of Silinda, who is alleged to have died after a four-year waiting period, is also problematic, although we have opened a temporary file. “The alleged employer, Butterfield Bakery, denies ever employing Silinda.” Maclean says that, according to the bakery’s assistant manager, Tabea Masege, Silinda was buying and re- selling bread in the township. “That is probably why his accident was not reported, because he was not employed by anyone but he was an independent contractor.” Maclean adds that the department is actively dealing with backlogs in claims. At the beginning of September, the compensation commissioner had two briefing sessions with 180 tenderers. “One tender is for a short-term solution of eliminating of all the backlogs.” “The other one is for long-term solution of re-engineering the business processes and internal restructuring of the Compensation Fund. It is expected that, by October 1, the contracts would have been signed.