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Chapter 12

PERSONNEL MATTERS

12.18 EDUCATORS ON DUTY INJURY

12.18.1Legislative and Policy Framework

ACTS

  • The South African Schools Act, No. 84 of 1996 [SASA]
  • Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 [COID]
  • Compensation for occupational injuries and Diseases Act, No. 130 of 1993, as amended increases of maximum amount of earnings on which the assessment of an employer shall be calculated [COID 16/2018]
  • The National Education Policy Act, 1996 (Act No. 27 of 1996) [NEPA]
  • Employment of Educators Act 76 of 1998 [EEA]

GUIDELINES

  • Personnel Administration Measures (Chapter H.5 and H.6) [PAM

12.18.2Framework for the Development of School Policy on Educators: On Duty Injury

Below follow some extracts from the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993. For guidelines or further information on the development of policy on on duty injury of educators or any further information on the topic, Principals and School Governing Bodies are referred to the Act.

  1. Purpose of the Act:
    To provide for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases; and to provide for matters connected therewith.
  2. Compensation for occupational injuries
    Right of employee to compensation

    22.(1) If an employee meets with an accident resulting in his disablement or death such employee or the dependants of such employee shall, subject to the provisions of this Act, be entitled to the benefits provided for and prescribed in this Act.
    (2) No periodical payments shall be made in respect of temporary total disablement or temporary partial disablement which lasts for three days or less.
    (3) (a) If an accident is attributable to the serious and wilful misconduct of the employee, no compensation shall be payable in terms of this Act, unless-
    (i) the accident results in serious disablement; or
    (ii) the employee dies in consequence thereof leaving a dependant wholly financially dependent upon him.
    (b) Notwithstanding paragraph (a) the commissioner may, and the employer individually liable or mutual association concerned, as the case may be, shall, if ordered thereto by the commissioner, pay the cost of medical aid or such portion thereof as the commissioner may determine.
    (4) For the purposes of this Act an accident shall be deemed to have arisen out of and in the course of the employment of an employee notwithstanding that the employee was at the time of the accident acting contrary to any law applicable to his employment or to any order by or on behalf of his employer, or that he was acting without any order of his employer, if the employee was, in the opinion of the commissioner, so acting for the purposes of or in the interests of or in connection with the business of his employer.
    (5) For the purposes of this Act the conveyance of an employee free of charge to or from his place of employment for the purposes of his employment by means of a vehicle driven by the employer himself or one of his employees and specially provided by his employer for the purpose of such conveyance, shall be deemed to take place in the course of such employee’s employment.
    Accidents outside Republic

    23.(1) (a)  If an employer carries on business chiefly in the Republic and an employee of his ordinarily employed in the Republic, meets with an accident while temporarily employed outside the Republic, such employee shall, subject to paragraph (c), be entitled to compensation as if the accident had happened in the Republic.
    (b) The amount of compensation contemplated in paragraph (a) shall be determined on the basis of the earnings which the employee, in the opinion of the commissioner, would have received if he had remained in the Republic.
    (c)  This subsection shall cease to apply to an employee after he has been employed outside the Republic for a continuous period of 12 months, save by agreement between the commissioner, the employee and the employer concerned, and subject to such conditions as the commissioner may determine.
    (2) If an employee resident in the Republic meets with an accident while employed in, on or above the continental shelf, such employee shall be entitled to compensation as if the accident had happened in the Republic.
    (3) (a) If an employer carries on business chiefly outside the Republic and an employee of his ordinarily employed outside the Republic, meets with an accident while temporarily employed in the Republic, such employee shall not be entitled to compensation unless the employer has previously agreed with the commissioner that such employee shall be entitled to compensation and, where applicable, has paid the necessary assessments in respect of him.
    (b) An employee referred to in paragraph (a) that is so temporarily employed in the Republic for a continuous period of more than 12 months, shall be deemed to be ordinarily employed by such employer in the Republic.
    (4) If, in terms of the law of the state in which an accident happens, an employee, in the circumstances referred to in subsection (1), is entitled to compensation or if an employee meets with an accident in the circumstances referred to in subsection (2) or in the Republic and he would be entitled to compensation in terms of the law of any other state as well as in terms of this Act, he shall by written notice to the commissioner elect to claim compensation either in terms of this Act or in terms of the law of the other state.
  3. Claims for compensation
    Notice of accident by employee to employer
    38.(1)  Written or verbal notice of an accident shall, as soon as possible after such accident happened, be given by or on behalf of the employee concerned to the employer, and notice of the accident may also be given as soon as possible to the commissioner in the prescribed manner.
    (2) Failure to give notice to an employer as required in subsection (1) shall not bar a right to compensation if it is proved that the employer had knowledge of the accident from any other source at or about the time of the accident.
    (3) Subject to section 43, failure to give notice to an employer as required in subsection (1), or any error or inaccuracy in such notice, shall not bar a right to compensation if in the opinion of the commissioner
    (a) the compensation fund or the employer or mutual association concerned, as the case may be, is not or would not be seriously prejudiced by such failure, error or inaccuracy if notice is then given or the error or inaccuracy is corrected;
    (b) such failure, error or inaccuracy was caused by an oversight, absence from the Republic or other reasonable cause.
    (4) If a seaman or airman meets with an accident, the person in command or the owner of the ship or aircraft, as the case may be, shall for the purposes of this section and sections 39, 40, 41 and 43 be deemed to be the employer.
  4. Notice of accident by employer to commissioner
    39.(1)  Subject to the provisions of this section an employer shall within seven days after having received notice of an accident or having learned in some other way that an employee has met with an accident, report the accident to the commissioner in the prescribed manner.
    (2) For the purposes of subsection (1) an employer referred to in section 84(1)(a)(i) means, in the case of-(a) the State and the provincial authorities, the respective heads of department referred to in section 6 of the Public Service Act, 1984 (Act No. 111 of 1984);
    (b) Parliament, the Secretary to Parliament;
    (c)  the governments of the self-governing territories, the respective heads of department referred to in section 5(2) of the Self-governing Territories Constitution Act, 1971 (Act No. 21 of 1971).
    (3) (a) An employer individually liable referred to in section 84(1)(a)(ii) shall within 60 days after the commencement of this Act furnish the commissioner in the prescribed manner with the name of a person who shall be responsible to report on behalf of such employer accidents as required by subsection (1) (in this section referred to the “responsible person”).
    (b) If such employer individually liable thereafter designates some other person as the responsible person such employer shall within 30 days after such designation notify the commissioner thereof in the prescribed manner.
    (4) Notwithstanding subsection (1) the commissioner may upon application authorize an employer individually liable to report accidents at such intervals and in such manner as the commissioner may determine.
    (5) An employer referred to in section 84(1)(b) shall report accidents to the mutual association concerned in the prescribed manner.
    (6) An employer, excluding an employer referred to in section 84(1)(a)(i) and (ii),who fails to comply with subsection (1) shall be guilty of an offence.
    (7) For the purposes of this section an accident includes any injury reported by an employee to his employer, if the employee when reporting the injury alleges that it arose out of and in the course of his employment and irrespective of the fact that in the opinion of the employer the alleged accident did not so arise out of and in the course thereof.
    (8) If an employer, excluding an employer referred to in section 84(1)(a)(i) and (ii), fails to report in the prescribed manner an accident which has happened to an employee in his service within seven days after having received notice thereof or having learned thereof in some other manner, the commissioner may impose a fine of not more than the full amount of the compensation payable in respect of such accident upon him in addition to any other penalty to which he /she may be liable.
    (9) If a fine is in terms of subsection (8) imposed upon an employer referred to in section 84(1)(b), and is paid to the commissioner or recovered by him/her, such fine shall be paid over to the mutual association concerned.
    (10) For the purposes of subsection (8) compensation includes the cost of medical aid and any amount paid or payable in terms of section 28, 54(2) or 72(2) and, in the case of a pension, the capitalized value as determined by the commissioner of the pension, irrespective of whether a lump sum is at any time paid in lieu of the whole or a portion of such pension in terms of section 52 or 60, and periodical payments or allowances, as the case may be.
    (11) If the commissioner is of the opinion that the failure referred to had no control or that the payment of the full amount of the compensation payable in respect of such accident, including the capitalized value as determined in subsection (10), will probably result in the insolvency of the employer concerned or, in the case of an employer that is a company, its liquidation, the commissioner may on such conditions as he may think fit(a) reduce or remit any fine imposed by him;(b) permit the employer to pay the fine in such instalments as he may determine.
    (12) An employer shall at the request of an employee or the dependant of an employee furnish such employee or dependant with a copy of the notice of the accident furnished by the employer to the commissioner in respect of a claim for compensation by such employee or dependant.
  5. Particulars in support of claim
    41.(1)  An employee who has met with an accident shall, when reporting the accident or thereafter at the request of the employer or commissioner, furnish such information and documents as may be prescribed or as the employer or commissioner may direct.
    (2) Subject to section 62, an employer shall within 14 days after having received a claim send such claim and any relevant information and documents to the commissioner.
  6. Employee to submit to medical examination
    42.(1)  An employee who claims compensation or to whom compensation has been paid or is payable shall when so required by the commissioner or the employer or mutual association concerned, as the case may be, after reasonable notice, submit himself at the time and place mentioned in the notice to an examination by the medical practitioner designated by the commissioner or the employer or mutual association concerned.
    (2) Such expenses incurred by the employee to comply with the provisions of this section as the commissioner may deem necessary and reasonable, and the prescribed remuneration for a medical examination in terms of this section, shall be paid by the party requiring the examination.
    (3) If, in the opinion of any medical practitioner, the employee is not capable of calling upon the designated medical practitioner, the employee shall inform the party requiring the examination thereof or cause him to be so informed, and the designated medical practitioner shall then examine the employee at a time and place as agreed upon.
    (4) An employee shall be entitled at his own expense to have a medical practitioner or chiropractor of his choice present at an examination by a designated medical practitioner.
  7. Claim for compensation
    43.(1)  (a) A claim for compensation in terms of this Act shall be lodged by or on behalf of the claimant in the prescribed manner with the commissioner or the employer or the mutual association concerned, as the case may be, within 12 months after the date of the accident or, in the case of death, within 12 months after the date of death.
    (b) If a claim for compensation is not lodged as prescribed in paragraph (a), such claim for compensation shall not be considered in terms of this Act, except where the accident concerned has been reported in terms of section 39.
    (2) Notwithstanding subsection (1) (a) a claim for compensation by any seaman or airman may be lodged with the person in command of the ship or aircraft concerned, as the case may be, except if such seaman or airman is himself the person in command.
    (3) If any seaman or airman meets with an accident outside the Republic resulting in death, a claim for compensation shall be instituted within 12 months after news of the death has been received by any dependant claiming compensation.
    (4) The provisions of section 38 shall apply mutatis mutandis in respect of any failure to institute a claim or in respect of any error or inaccuracy in a claim instituted in terms of this section.
  8. Prescription
    44. A right to benefits in terms of this Act shall lapse if the accident in question is not brought to the attention of the commissioner or of the employer or mutual association concerned, as the case may be, within 12 months after the date of such accident.
  9. Consideration of claim
    45. (1) The commissioner shall consider and adjudicate on a claim for compensation, and for that purpose may carry out such investigation as he may deem necessary or he may formally hear the claim.
    (2) If the commissioner decides upon a formal hearing, he shall in the prescribed manner give notice of the date, time and place of the hearing to the claimant and employer.
    (3) If the commissioner considers it necessary that any person, including the claimant and the employer, should be present at a formal hearing to be interrogated, he may issue a subpoena for the appearance of such witness.
    (4) Upon application by a person who in the opinion of the commissioner has a sufficient interest in the subject of a formal hearing, the commissioner shall issue a subpoena for the appearance of a person except if he is of the opinion that such person cannot further the investigation, in which case the commissioner shall issue a subpoena only if the party applying therefore deposits with the commissioner a sum sufficient to cover the necessary expenses to be incurred by the witness as well as the cost of the service of such subpoena.
    (5) The provisions of section 6 shall apply mutatis mutandis to a person subpoenaed in terms of subsection (3) or (4).
    (6) The commissioner may from time to time adjourn a formal hearing to a date, time and place determined by him.
    (7) The commissioner shall keep or cause to be kept a record of the proceedings at a formal hearing, and upon payment of the prescribed fees any person may obtain a copy of such record.
  10. Appearance of parties
    46.(1) (a) Every party to a claim for compensation or his representative may appear before the commissioner at a formal hearing.
    (b) The commissioner may designate any person to investigate a claim, attend a formal hearing, cross-examine witnesses, and adduce rebutting evidence and present arguments.
    (2) No person other than an advocate or attorney shall be entitled to any fees or remuneration except such necessary expenses as the commissioner may allow.
    (3) No fees or remuneration shall be claimed from an employee or employer except with the approval of the commissioner.
    (4) (a) The commissioner may of his own motion or on an expert application by a party to a claim for compensation, order any attorney employed by such party or a representative who has, contrary to subsection (2), claimed fees or remuneration, to submit to him a statement showing what he has received or contracted to receive from his client, and to submit for taxation his bill of costs, including attorney and client costs, against such client.
    (b) Upon such taxation the commissioner may allow such fees, costs and expenses as he may consider reasonable in the circumstances.
    (c) If an amount has been paid in excess of the amount allowed upon taxation, the excess shall be refunded to the person concerned, and any agreement in terms of which such an excess is otherwise payable shall be void as to that excess.
    (5) The provisions of subsections (2), (3) and (4) shall also apply to any act in connection with a claim for compensation which is not the subject of a formal hearing.
    (6) Any person who agrees or attempts to collect any money contrary to the provisions of this section shall be guilty of an offence.