Who may Claim from the Compensation Fund

By 19th Jun 2022Employment
compensation fund

The Compensation Fund was established to alleviate some of the pressure held by employers. This Act allows for employees to claim from the fund where they are injured during the course and scope of their employment. However, there are exceptions to this as not all employees fall within the Act nor do all forms of work. This article will address who may make a claim from the fund and under which circumstances they may do so.

The Compensation for Occupational Injuries and Diseases Act No. 130 of 1993 (COIDA) was established to create a fund to compensate employees who have been injured as a result of their employment. The first thing which must be analyzed is who the Act defines as an employee. Section 1 of the Act defines an employee as “a person who has entered into or works under a contract of service or of apprenticeship or learnership, with an employer, whether the remuneration is calculated by time or by work done”. This means that most forms of work fall within the scope of employment, this may relate to a permanent employment contract, a fixed-term contract, or a casual employment relationship. Where your time or skills are used in exchange for remuneration it is generally seen as an employment relationship and once an employment relationship may be established, the employees may become eligible to claim from COIDA as a result of an injury that occurred in the workplace. However, it is not always this straightforward, with any rule there are always exceptions to that rule, and this is no different.

For COIDA not all forms of work are seen as equal. There are certain types of work that are excluded by the Act. These include individuals who are in the employ of the State, specifically performing military service or undergoing training in terms of the Defence Act No. 44 of 1957, further to this an individual who is a member of the Permanent Force of the South African Defence Force is not including within COIDA’s definition of an employee. In addition, COIDA further excludes members of the South African Police Force. What is common with all of these exclusions is that these forms of work have an inherent form of risk and unavoidable injury. COIDA further excludes persons that contract for the carrying out of work by him/herself and further subcontracts such work to a third party. Finally, and the most controversial of all, COIDA excludes domestic employees who undertake to work in a private household as an employee, for the purpose of the Act.

This brief outline of who may claim from COIDA is not a complete list thereof. Certain circumstances may result in certain types of work being included or excluded and each matter must be dealt with on a case-by-case basis. Where COIDA is silent on a certain set of circumstances, the common law may be looked to. Should you require a more thorough analysis or further guidance on this matter whether you are an employer or employee, contact us, and we will gladly assist you.

 

 

Saeedah Salie
saeedah@bbplaw.attorney
Candidate Attorney

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