Shafted…but was it during the course and scope of employment?

In terms of s35(1) of the Compensation for Occupational Injuries and Diseases Act, No 130 of 1993 (COIDA), an employee who suffers an occupational injury has no action for damages against his or her employer. An occupational injury is one that arises from and in the course of an employee’s employment, resulting in personal injury, illness or death of that employee.

12 Feb 2019 3 min read Employment Alert Article

In De Gee v Transnet SOC Ltd (30085/2015) [2019] ZAGPJHC 2, the High Court had the opportunity to consider when an occupational injury can be said to have occurred during the course and scope of an employee’s employment for purposes of COIDA.

De Gee, an executive support manager, injured his lumbar spine when the lift he was travelling in fell approximately seven floors. He was using the lift to gain access to his office situated on the 48th floor of his employer’s building.

De Gee instituted proceedings in the High Court for damages he allegedly sustained due to his injuries. His employer opposed his claim and raised a special plea in terms of which it contended that he could not institute legal proceedings against it as he had suffered the injuries during the course and scope of his employment and, as such, his claim was covered by COIDA.

The court distilled the following guidelines from previous authorities to determine whether an employee was acting in the course and scope of his employment when the injury occurred:

  1. an employee is acting in the course of his employment when he is doing something he was employed to do;
  2. where an employee is travelling to or from work, the journey is dissociated from the employee’s employment unless the employee is fulfilling an obligation imposed by the contract of employment;
  3. an employee does not start working until he has reached his work, unless at the time the injury occurred the employee was doing something in discharge of his duty towards his employer;
  4. after an employee has finished his work for the day and started his way home, his employment continues while navigating the premises. Once an employee reaches a place of public access, his status as a worker is removed and he becomes a member of the general public;
  5. an employee may be deemed to be working while travelling to work if he is required to follow a prescribed route or is required to use a prescribed means of conveyance; and
  6. in all cases where an employee on going to or on leaving work suffers an accident on the way, the first question to be determined is whether the employee was at the place where the accident occurred by virtue of his employment or as a member of the public.

The court emphasised that there is no bright-line test. Each case must be decided on its own merits. It held that the place where the accident happened was not decisive for the purposes of an inquiry in terms of s35(1) of COIDA. Even if the accident happened at a place not owned by the employer it could still give rise to an occupational injury. The important question is whether the injury arose out of and in the course of the employee’s employment. The court concluded that based on the evidence before it, there was insufficient evidence to determine whether at the time of the incident the employee was acting in the course and scope of his employment. On this basis, the court found that the employee’s claim was not covered by COIDA and dismissed the employer’s special plea.

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