Chaos in the Department of Labour has led to an irate Legal Resources Centre now struggling to cope with a flood of cases, writes Glenda Daniels
A backlog of 5 453 uninvestigated workplace accidents coupled with an administrative shambles in the government’s compensation system for workplace injuries has now spilled over to an irate Legal Resources Centre (LRC), an NGO.
The LRC’s Pretoria office says incapacity and administrative chaos at the Department of Labour’s compensation office is resulting in long delays in injured workers receiving payouts. This means its Pretoria office alone has ended up trying to resolve 130 cases for workers who got no luck through official channels.
Last month, the LRC met the Department of Labour to seek solutions. It also recently approached the Congress of South African Trade Union (Cosatu) and the Public Protector’s Office and is making representations to the National Economic, Development and Labour Council (Nedlac).
LRC attorney Paula Howell says in a fax to Nedlac that the compensation office lacks the personnel capacity and the will to make payouts: in many cases claimants wait years before they receive compensation.
There are also enormous difficulties reaching the compensation commissioner’s office by telephone, written enquiries are not responded to and there is an apparent bias in favour of employers in deciding whether a claimant is paid.
Since 1993 two pieces of legislation allow for the prosecution of employers in cases of unsafe workplaces and the compensation of an employee in the case of an injury the Compensation for Occupational Injuries and Diseases Act and the Occupational Health and Safety Act.
The legislation is generally thought of as good, but the implementation leaves much to be desired.
Central to the mess, the LRC’s Howell claims, is the commissioner of the fund, Bongi Magojo, who is following administration procedures that are “prejudicial to claimaints”.
Where the employer is negligent, she says, claimants are not told that they are entitled to increased compensation.
“We tackled the commissioner’s office on this and were informed that this information would not be given to claimants because it would be unfair to the employer.” For example, none of the families of the 11 killed in the infamous Lenasia factory fire of last year were told they might be entitled to additional compensation.
Delays at the compensation office are also, according to Howell, caused by a lack of electronic processing. But the Department of Labour says this has now begun. In addition, when employers do not complete reports of accidents it is the responsibility of the compensation office to follow up but this is not happening.
The office is understaffed it has only 27 people, hardly enough to deal with the nearly 200 000 cases that come before it yearly.
Howell alleges that there is no will on the part of the commissioner to pay out claimants because her salary is drawn from the fund.
“The commissioner and her staff therefore have an interest in ensuring that the fund is not exhausted by the claims. It is therefore not unreasonable to deduce that the administrators of the fund are likely to be prompted to reject claims whenever possible.”
Howell says that it is also “understandable why there appears to be no motivation to increase the number of staff who deal with assessments as this would put increased pressure on the compensation fund”.
Labour department spokesperson Julian Jacobs, responding this week, confirmed that the salary of the commissioner was paid from the fund. He said that of the 7 453 workplace incidents reported to the department as at June this year, 2 000 cases have been completed. He blamed employers for not complying with the Occupational Health and Safety Act to report injuries timeously. The Act requires that employers report incidents within seven days, but the average is closer to 80 days. He said that delays are also caused by the time it took to investigate claims, incomplete documents and the old manual way of processing claims.
By law, every workplace with more than 20 people should have a health and safety committee. In a new document on health and safety in the workplace, Cosatu says such a committee should investigate whether buildings and floors are in good condition; whether there is sufficient lighting, proper ventilation and fire escapes; whether employees continually suffer from the same illnesses and whether these are caused by the work they do.
Since the Lenasia fire in November last year, which claimed 11 lives when workers were trapped in a factory full of inflammable chemicals, it was found after a blitz inspection by the Department of Labour that millions of workers in the country were in unsafe workplaces.
Joe Nkosi, Cosatu’s deputy president, said at the time: “The accident confirms what we have always said, that the conditions of millions in our country must be improved and that legislation must be enforced without fail.”