COIDA DOES NOT PROTECT EMPLOYERS FROM ALL LIABILITY

In the recent case of Churchill v Premier, Mpumalanga (889/2019) [2021] ZASCA the Supreme Court of Appeal found that an employer is not protected from a civil claim from an employee when the employer fails to take necessary and appropriate steps to protect non-participating employees during protest action.

Ms Churchill who worked for the Premier of Mpumalanga was caught in protest action, organised by a trade union, the National Education, Health and Allied Workers' Union (NEHAWU) which occurred at the premises and in the building where she worked. She was assaulted and mistreated by the protestors and eventually evicted from the premises in a manner that was humiliating and degrading which resulted in some physical injuries but more importantly lead to psychological injury which has left her with PTSD (Post Traumatic Stress Disorder) of significant intensity.  

Despite attempting to return to work Ms Churchill found the situation intolerable and decided to resign. 

Ms Churchill instituted a civil claim against her past employer due to the injuries she suffered as a result of the protest action and the employer’s negligence in not ensuring the safety of non-protesting employees during the protest action. 

The Premier’s office raised a special plea contending that Ms Churchill’s claim constituted an occupational injury for which she was entitled to compensation in terms of the Compensation for Occupational Injuries and Diseases Act 130 or 1993 (COIDA) and was therefore prohibited from instituting a civil claim against her employer. 

Section 22(1) of the COIDA provides that: ‘If an employee meets with an accident resulting in his disablement or death such employee or the dependents of such employee shall, subject to the provisions of this Act, be entitled to the benefits provided for and prescribed in this Act.’  

The key word is “accident”, which is defined as meaning: “. . . an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee”. 

If an employer proves that an occupational injury which falls under COIDA occurred, then the employee is restricted to only claiming from the Compensation Commission a fixed amount and may not institute a civil action against his/her employer. 

Since the injury to Ms Churchill occurred at her workplace when she was discharging her duties, it undoubtedly arose out of her employment with her employer, however the Court held that the real question was whether the risk of being assaulted was incidental to her employment. 

The Court found that the possibility of protest action turning violent and resulting in assaults on non-participating employees, in no way meant that the assaults were risks incidental to the employment of those assaulted. 

Ms Churchill’s assault had no correlation to her position and accordingly her injuries did not arise out of her employment. 

The Court reiterated that violence cannot be said to be incidental to an employee’s duties and accordingly cannot be held to be part of the job description as was argued by the employer.  

Each case will have to be determined on its own merits as to whether the accident which resulted in the injury was linked to the employee’s employment and/or performance of duties.