April 2021

Amendments encapsulated within the Compensation for Occupational Injuries and Diseases Amendment Bill (the Bill) have introduced harsher penalties to be levied upon employers regarding unlawful conduct in connection with workers’ compensation. In light of an over-crowded court roll, employers will no longer face criminal sanctions by a court of law. These sanctions will instead be replaced with more extreme penalties, which can be objected against and appealed to the Compensation Fund, and subsequently then to the courts should they wish to persist.

A new chapter has been introduced to the Bill related to the appointment of inspectors and regarding enforcement and compliance. This enables inspectors to monitor and enforce compliance with the Act, through inspections and investigation of complaints. Inspectors have the power to enter homes and workplaces subject to consent from the occupier/owner, to enforce compliance with the Act. Inspectors will have the power to issue compliance orders, which will ultimately become an order of court.

The Bill has included domestic workers, who were previously excluded from the protection granted by the Act. This decision has also been confirmed by the Constitutional Court in Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24, which ruled that the provision in COIDA, which excluded domestic workers from being able to claim from the Compensation Fund in the event of injury, illness or death, is unlawful and violates the rights to social security, equality and dignity.

The Bill has also introduced the concept of a multi-disciplinary employee-based process in which employee rehabilitation, reintegration and return to work processes must be undertaken by employers for employees who suffer occupational injuries or disease. These measures will force employers to ensure that they have exhausted all processes before embarking on dismissal processes. When the Bill is enacted, employers will most likely be expected to revise their disciplinary procedure policies to align it with the Bill.

Additional proposals include:
• The Bill has further granted the Compensation Commissioner greater powers as a
means to increase efficiency of the Compensation Fund.
• The Bill has also taken a strict stance on injuries related to the wilful conduct of employees in that such employees will not be entitled to compensation as a result thereof.
• Additionally, employees involved in an accident on a public road will now be required to claim form the Road accident Fund instead of the compensation fund.

The abovementioned proposals indicate an obligation on the employer to review and amend all its policies and procedures in relation to occupational health and safety in order to ensure compliance with the Bill to avoid any financial or reputational risk. The notification of the call for written submissions regarding the Bill will be issued by Parliament in 2021.

K. Cowley
(Chairperson – (CEA – TESD)