Good Morning!

This month there is a very important case I think you need to know about. 

It’s a brand new landmark Constitutional Court judgment on claims for damages by employees of mining companies.

Landmark Constitutional Court judgment on employees’ claims for damages against mining companies for occupational injury or disease

On 3 March 2011, the Constitutional Court handed down a landmark judgment. It found that employees of mining companies may institute claims for damages for occupational injuries or diseases against their employers. This is despite the provisions of the Compensation for Occupational Injuries and Diseases Act130 of 1993 (COIDA) and the Occupational Diseases in Mines and Works Act 78 of 1973 (ODIMWA), which had previously made mining houses immune from such claims. So if you’re a mine (or you work with a mine), then you’d better sit up and take notice!

What happened in this case

Mr Manyaki worked as an underground mineworker for Anglo Gold Ashanti for 16 years, from 1979 to 1995.  He contracted the diseases of tuberculosis and chronic obstructive airways and received compensation of R16 320 in terms of ODIMWA.  Despite receiving this ODIMWA compensation, Mr Manyaki instituted a claim for damages against Anglo Gold Ashanti of R2,6 million. 

Anglo Gold Ashanti said Mr Manyaki was an employee in terms of COIDA and ODIMWA compensatable diseases were part of the definition of disease contained in COIDA. And therefore the COIDA provisions applied to him. It argued that Mr Manyaki couldn’t claim against them because of Section 35(1) of COIDA. This section says employees and/or their dependents can’t recover any damages for occupational injury or disease resulting in death or disablement from their employers.

Mr Manyaki agreed he was an employee as defined by COIDA, but he argued that, in terms of ODIMWA, he could claim damages from Anglo Gold Ashanti. He argued that he ‘d received compensation in terms of Section 100(2) of ODIMWA and that, because this section expressly barred him from also receiving benefits in terms of COIDA, it then followed that COIDA didn’t apply to him. He claimed that because of this he could claim damages from his employer.

The Constitutional Court agreed!

The Constitutional Court found that although the compensatable diseases under ODIMWA overlap with the occupational diseases under COIDA, the compensation system in ODIMWA was separate from the compensation system under COIDA.  The Court said Section 100(2) of ODIMWA expressly insulate or separate employees who benefit from ODIMWA (like Mr Manyaki) from those who benefit from COIDA. 
The Court then found that, as COIDA didn’t apply to Mr Manyaki, Section 35(1) of COIDA (which wouldn’t have allowed Mr Manyaki to claim for damages) wasn’t applicable.

Therefore…Mr Manyaki was perfectly entitled to claim for damages. 

*******

Why is this judgment so important

Employees, who’ve already received payment in terms of Section 100(2) of ODIMWA, can still claim for damages from their employers for occupational injuries or diseases. This judgment doesn’t, however, alter Section 35(1) of COIDA, i.e. employees and/or their dependents who receive payment in terms of COIDA can’t claim for damages from their employers for occupational injuries or diseases.

We'll cover more of this case and how it affects you in a forthcoming Labour Law for Managers update. Remember, as a subscriber you'll be kept up-to-date on any cases and legislation changes that will affect you...and as you know there will be many of those in the next few months!

Make sure you're the first to know how changes will affect you and what you must do to proetct your rights...click here to find out how.

Until next time.

Lizle Louw

----------------------------------------------------------------

More labour hot topics and recent updates...

Take a look at some of the most popular past articles:

    * Help your employees (and yourself) overcome that mental block
    * *Knock knock* The Labour Inspector arrives unannounced… are you ready?
    * Are employees who work at home covered by COIDA?
    * One easy way to make sure your documentation is 100% correct