Liability - Workmen's Compensation when a Contractor/Employee is Injured
According to Section 22 of the Compensation for Occupational Diseases Act, 130 of 1993, more commonly known as COIDA, all employees have the right to compensation where they have sustained an injury on duty, become ill, or are disabled as result of a workplace accident or work-related disease.
An occupational disease is classified as a disease which arises out of and is contracted during an employee’s employment, listed in Schedule 3 of COIDA.
To explore who will be liable for workmen’s compensation when a contractor employee is injured on the client’s premises, whether the client or the contractor, there are further definitions and sections of COIDA which must be explored.
Definition of Employee
The word ‘employee’ has an overly broad term, but it can simply be defined as any person who enters a contract of service with an employer. However, the position of ‘employee’ differs were independent contractors.
According to Section 89(1)(a) of COIDA, the following applies:
- Should a person, or a mandator, in the course of, or for the purpose of, his business, enter an agreement with any person, or the contractor, for the execution by or under the supervision of the contractor either the whole, or any part of, any work undertaken by the mandator, the contractor shall, in respect of his employees who are employed in the execution of the concerned work, register as an employer in accordance with COIDA, and pay the necessary assessments.
What happens if the contractor does not meet the requirements?
Section 89(1)(b) of COIDA makes adequate provision for instances where contractors fail to meet their obligations in terms of COIDA. If this occurs, the contractor’s employees will be deemed as employees of the mandator (client). This makes the client responsible for the paying of assessments in respect of the employees in question.
In addition, Section 89(2) of COIDA provides for events where the client is responsible for having paid an assessment or compensation, where the client would not have been liable had the contractor complied with their obligations under COIDA, that such a client recovers the assessment or compensation from the contractor.
This amount may also be set off against any debt due to the contractor.
Who is considered the employer, the client, or the contractor?
In determining which of the two parties will be held liable for the compensation, it is imperative to first establish which of the two is considered the employer. Should the employer be the independent contractor, Section 89 of COIDA would apply.
Where public liability is concerned, there is a general rule of the law. This is that although an employer may be held liable for the wrongdoing of their employee, an employer is not responsible where the negligence or wrongdoing of an independent contractor, who has been contracted to perform certain tasks, is concerned.
The employer, or client, is therefore not responsible for negligence or wrongdoing on the part of the independent contractor. The employer is only required to exercise the degree of care which is demanded by the circumstances and is not obliged to take any further steps than is required in guarding against foreseeable harm.
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