Protectors over labour issues in the social development department caused injury to non-striking employee who was working as the Chief Director: Policy and Research.
The employee instituted proceedings against the employers for the shock, humiliation which resulted in psychiatric injury and physically injuries she suffered at the hands of the protestors. The injuries occurred while she was at her place of employment and on premises where she was employed. She further sued for loss of income as she was forced to resign due to the mental status.
The employee held that her employer took no steps, or alternatively inadequate steps, to ensure the safety of their employees in the workplace and that the actions of its employees, the protestors, were vicariously imputed on the Premier and Director-General.
The defendants contended that her claim constituted an occupational injury for which she was entitled to compensation in terms of the in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act) and was therefore precluded by section 35(1).
The right to compensation for injuries or illnesses that fall within or outside the scope of the statute is established under s 22(1) of the Act. There are three elements to the definition, namely: an accident; arising out of and in the course of an employee’s employment; resulting in a personal injury, illness or the death of the employee.
The exclusionary section 35(1) states that:
“No action shall lie by an employee or any dependant of an employee for the recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of such employee against such employee’s employer and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement or death.”
The appeal court had to determine the nature and extent of the causal connection between the incident and the employee’s employment, as this is not defined in the Act.
It made a two-step enquiry:
Did this incident arise in the course and scope of claimant’s employment?
Was the risk also incidental to her employment?
The court held that there was no link between her duties as an employee and the issue in regard to which the protest action had been called. It was connected to her employment, but not to her duties in that employment.
Further, the employee was not responsible for the formulation of employment policy. Therefore, the assault and the resultant injuries had no connection, direct or indirect, with the employee’s duties in terms of her contract of employment and the Premier was found liable.
The court held that a causal connection for the purposes of the Act would disappear if the accident was of such a nature that the worker would have suffered the injuries even though they were at a place other than the work demanded, or if the worker by their act severed the existing connection between their service and the accident, or where the workman was deliberately injured by another person and the motive for the assault had no connection with the working duties of the worker.
In this case the only connection between the incident and the claimant’s employment was that she was at work at the time. The incident bore no relation to her duties and was the result of misplaced anger directed at her by the protestors because of a misunderstanding.