Ruling will break log jam in claims for compensation By Terry Bell There has been one optimistic note in an otherwise gloomy week

Ruling will break log jam in claims for compensation
By Terry Bell

There has been one optimistic note in an otherwise gloomy week for much of the trade union movement.

It came on Wednesday in the Pretoria high court with an agreement between the Workmen's Compensation Commission (WCC) and the local Legal Resources Centre (LRC).

An order of the court, formalising the agreement, finally moved the focus of the WCC from the employer to those employees killed or injured in the course of work. It also noted that the WCC agreed to deal with all outstanding claims.

This agreement, and the court ruling that gives effect to it, eases a log jam of a decade and more created by bureaucratic bungling, maladministration and sheer inertia. Whether it will finally provide relief to the pent-up flood of human misery represented by the dusty files in the WCC is moot.

But it has finally exposed one of the great travesties of the local labour market. Workers, by government edict, gave up their right to sue employers for occupational injury, illness or death, once the WCC was put in place.

Workers injured as a result of their work or the families of workers killed as a result of their occupation, were to be automatically compensated. In the event, how compensation for various injuries is calculated is often farcical, but the intention to adequately compensate exists.

Yet compensation commissioners have, over the years, decreed that only employers could file claims to be acted on; without an employer report, a claim could not be processed.

This week, the high court in Pretoria endorsed the rejection of that concept. After a long and often frustrating battle by the LRC, it was at last agreed that an employer report should not be a prerequisite for action.

This amounts to a potentially major breakthrough.

And the WCC has agreed to deal with all outstanding claims for compensation for death and injury in workplaces within eight months.

Whether this agreement can be honoured remains to be seen since nobody, including the WCC, seems to know exactly how many outstanding cases exist. The LRC lodged a formal question, but is still waiting for a reply.

A year ago, in this column, labour lawyers, consultants and others concerned with the WCC provided estimates ranging from 40 000 to 250 000.

Most estimates, however, put the number of effectively shelved cases at "more than 100 000".

When an official figure will become available is not known since it seems that the tally is being done manually within the WCC. According to one WCC official, "our computers aren't up to it".

Why this should be so is another puzzle, although it seems probable that the blame lies more with human error and maladministration than with computers.

And there was an admission that something was wrong at the administrative level with the recent departure from office of the compensation commissioner.

She left under a cloud, and the acting commissioner appears to have impressed many of those who have subsequently dealt with the WCC. She has apparently promised that systems in the commission would be revised.

This, as several trade unionists and labour lawyers have pointed out over the years, is vital. As matters stand, the WCC still operates on its bonus system.

This means that staff are paid on the basis of cases completed. Difficult cases, such as those deemed to require an employer report of an accident, were most often simply ignored and shunted into the notorious "T" (for temporary) files.

Some of these files date back as far as 14 years and contain an almost unimaginable catalogue of misery and human suffering. Cases abound of lingering deaths, of paraplegics unable to afford a meal let alone a wheelchair, of hunger and unnecessary pain.

Most of these cases can be found in the "T" files. They remain there because employers did not or would not fill in a report.

But now, according to the court ruling, the WCC has agreed to deal with compensation claims even when an employer report is not available.

This is a major advance, but it also raises another issue: who will investigate and follow up on the missing reports?

There are three inspectors on the books of the WCC. But they work within the department of labour, and not specifically for the WCC, which pays their salaries.

This is not surprising, because although the WCC is a wholly self-funded organisation, it has been part of the department since 1998 and is under the direct control of the departmental director-general.

Some critics have seen this as a conflict of interest. But the fact that even this debate is now in the open is being welcomed by those who have campaigned for fair compensation.

The LRC in Pretoria has opened the debate. The union movement should ensure that the issue is satisfactorily resolved once and for all.