A Constitutional Court ruling made on Thursday, 19 November 2020 has declared provisions of the Compensation for Occupational Injuries and Diseases Act (COIDA), specifically those excluding domestic workers, to be unconstitutional, Bernard Reisner of Cape Labour and Industrial Consultants tells Parent24.
"The Constitutional Court has ruled that domestic workers (which includes gardeners, person employed by a household to drive a motor vehicle, persons who take care of children, the aged, frail or disabled) in private households are now going to be covered for claims by the provisions of the Compensation for Occupational Injuries and Diseases Act (COIDA), and damages can be claimed for work-related injuries, illnesses and death," Reisner advises.
The ruling will apply retrospectively to 27 April 1994, which means, Reisner tells us, that even domestic workers previously injured as well as their families and dependents may lodge claims.
"Sadly, domestic work as a profession is undervalued and unrecognised, even though they play a central role in our society. This victory to include domestic workers in COIDA has been an on-going battle for years".
So how can your nanny or domestic worker go about claiming?
Below LAW FOR ALL, local legal insurance providers, lays out a guide to claiming from the Compensation Fund.
What injuries are covered under COIDA?
More specifically, this Compensation Fund covers workers who are injured while carrying out their day-to-day duties on the job or contract an illness because of their working environment. These "occupational diseases" are ones caused by substances or conditions that the worker was exposed to at the workplace.
Workers can claim compensation if they are exposed to these working conditions and then get the related disease. Medical evidence must be provided to prove that the disease was cause by conditions at work.
What are the types of compensation?
Medical expenses paid for up to 2 years from the date of the accident or diagnosis of the illness (this can include the costs of being transported to and from hospital)
Temporary disability (when an employee is unable to work or fulfil all their duties because of an injury, but will recover)
To claim, the worker must be booked off by a doctor for more than 3 days. If booked off for a longer period, the worker will get paid out for the entire time they are unable to work (including the initial 3 days).
If a worker can only carry out some of their duties, the fund will pay 75% (three-quarters) of the difference between what they got paid and what they would’ve been paid before the injury.
If they cannot work at all, the fund will pay out 75% (three-quarters) of their normal monthly or weekly wage.
Medical expenses are also covered by the fund.
Worker can claim compensation for temporary disability for 1 year. This can be extended to 2 years, after which the Compensation Commissioner may decide that the condition is permanent and grant compensation on the basis of permanent disability.
Permanent disability (an injury or illness that a worker will never recover from, for example: losing an eye)
The "seriousness" of the injury or illness will determine whether or not the employee will be able to ever work again or find their more difficult to do.
Disabilities are rated from 100% to 1% depending on the seriousness. For example, a 100% would be the loss of both hands or the loss of sight. The loss of a small toe is a 1% disability.
After a doctor writes a report, the Commissioner and other doctors will determine the seriousness of the disability.
- For a disability that is more than 30%, a worker will receive a monthly pension (the amount is determine by what the wages were)
- For a 100% disability, an employee will get paid 75% (three-quarters) of their wages.
- For a less serious disability, the Commissioner will work out the monthly payment, which will be paid out for the rest of their life.
- For a disability that is less than 30%, a once-off lump sum will be paid out.
If a family member that earns money to support the family (breadwinner) is killed by an occupational injury or disease, the family can claim from the fund. The amount of compensation that will be paid depends on the relationship to the person who passed. The total amount paid to the family can’t be more than the pension the dead family member would’ve received.
A step-by-step guide for Nanny’s who want to claim from the Compensation Fund
Inform your employer as soon as possible (verbally or in writing). Make note of anyone who witnessed the accident.
The form that needs to be completed is WCL 2: Notice of Accident and Claim for Compensation.
Your employer must then report the accident to the Compensation Commissioner, even if they don’t believe your story, by submitting Form WCL 3: Employer's Report of Accident.
You should check that all the details on the form are correct.
A doctor must fill in form WCL 4, stating how serious the injury was and how long you are likely to be off work. This is sent to your employer, who sends it to the Commissioner.
You don’t pay for the doctor's fees but if you want a second opinion, you’ll have to pay for this.
If the injury will take a long time to heal, the doctor must send a progress report (WCL 5) to the Commissioner every month until the condition is fully stabilised. This informs the Commissioner of how long you’ll be off work.
Finally the doctor must submit a final doctor's report (WCL 5) stating either that you’re fit to go back to work or that you’re permanently disabled. The doctor must send this form to the employer who sends it to the Commissioner.
When you go back to work, your employer must send a resumption report (WCL 6) to the Commissioner stating that you’re back to work and how much you were paid in compensation.
Both you and your employer should keep copies of all the forms.
When the first doctor's report has been submitted with the accident report, the Compensation Commissioner will consider the claim and make a decision. A claim number will also be allocated. This number should be used for all paperwork relating to a claim.
If you disagree with the decision, they can appeal the decision within 90 days by submitting form W929 to the Commissioner.
Assist with the process
Remember, losing out on income due to an illness or injury can have devastating consequences for a nanny and the people they provide for, so as a caring employer, be sure to assist them with claiming for compensation.
Share your stories and questions with us via email at email@example.com. Anonymous contributions are welcome.
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