Why is Employer’s Liability necessary if we have the COID Act?

The Compensation for Occupational Injuries and Diseases Act No 130 of 1993 (COID Act) has eliminated the common law right of an employee to sue his employer for injury or diseases that arise in the work place as a result of an accident. However this does not mean that there is no chance of an employer being sued.

  • COIDA only covers accidents. If an employee was injured as a result of the wilful act of another employee COIDA might not respond.
  • COIDA may yet be found to be a breach of a person’s constitutional right to fair compensation for a loss since COIDA’s compensation payments are very limited. Consider Mankayi v AngloGold Ashanti Limited [2011].
    • The Supreme Court of Appeal had upheld a June 2008 Johannesburg High Court decision that employees who qualified for benefits in respect of the Occupational Diseases in Mines and Works Act (ODMWA) could not lodge civil claims against their employers.
    • Mankayi took the matter to the Constitutional Court arguing that COIDA did not apply to him because he was compensated by the ODMWA.
    • AngloGold’s counter argument was that COIDA precludes common law claims by employees against their employers (section 35(1)).
    • Mankayi’s argument won. The Constitutional Court ruled against AngloGold, paving the way for Mankayi’s R2.6m occupational injury/disease claim against AngloGold.
  • It is also worth remembering that COIDA does not cover any worker who:
    • is employed outside of South Africa for a continuous period of 12 months or longer
    • is ordinarily employed outside of South Africa and has an accident while temporarily working in South Africa 
    • refuses or wilfully neglects medical treatment 
Subject: 
General Liability