Employees can sue employers for damages during protests
IN A JUDGMENT that is a victory for employees, a court held that it was possible for an employee to claim from her employer after she was injured during protest action while at work.
The Supreme Court of Appeal (SCA) in Bloemfontein ordered that the Premier of Mpumalanga, in his official capacity, is liable to compensate Catherine Churchill for the damages she could prove that she had suffered at the hands of protesters while she was working at the Office of the Premier in April 2017.
According to evidence, Churchill went to work as usual, where she was employed as the chief director of policy and research.
During the morning, protest action over labour issues, organised by the National Education, Health and Allied Workers’ Union (Nehawu), broke out at the office. She got caught up with the protesters, was assaulted and mistreated by them and eventually thrown out of the building in a “humiliating” and “degrading” manner.
A medical report reflects that she suffered some physical injuries, including bruises, scratches and a swollen foot.
She also suffered shock and humiliation and was left with severe post traumatic stress disorder.
She tried to return to work, but said that she found the situation intolerable and resigned.
She sued the premier and the director-general (D-G), claiming that her treatment by the protesters, including the assaults, was due to the negligence of her employers. She argued that they took no steps to ensure the safety of their employees in the workplace. Had they taken reasonable steps to do so, she claimed, then the assault on her would have been avoided.
Churchill claimed nearly R7.5 million in total damages. The bulk of this is compensation for loss of income calculated up to her date of retirement on the basis that she will be unable to work again.
The premier and the D-G raised a special plea, contending that her claim constituted an occupational injury for which she was entitled to compensation in terms of the Compensation for Occupational Injuries and Diseases Act (Coida) and that she thus could not claim against her employers.
They denied that they were negligent, and thus, did not have a legal duty to compensate her. They also denied that they were vicariously liable for the behaviour of the protesters.
A judge sitting in the Mpumalanga High Court earlier agreed with the office of the premier that they did not have a duty to compensate her, as her claim fell under Coida.
Churchill, subsequently, and successfully appealed against the ruling before the SCA.
SCA Judge MJD Wallis said the purpose of Coida was to compensate for occupational injuries and disease.
“The incident bore no relation to her duties and was the result of misplaced anger directed at her because of a misunderstanding. She was not assaulted because of the position she held, or because of anything she had done in carrying out her duties.
“She was assaulted because one individual mistakenly thought she had sworn at him and he, together with others, responded by assaulting and humiliating her. In my opinion her injuries did not arise out of her employment,” said the judge.
Hailing the judgment, law firm Webber Wentzel explained that ordinarily employees injured on duty would be able to lodge a claim with the Compensation Fund under Coida.
However, given the unique circumstances in this matter, the SCA held that Coida did not apply, and that instead, the employee could claim damages from the employer, directly.
The matter was meanwhile referred back to the high court to determine the quantum of damages she should be awarded.