Unit 8 30 of 1941 Learning objectives At the end of this unit, you should be able to: Determine the application field of the (ECA) State the objectives of the Accident Fund Briefly explain the concepts of employee, employer and accident in the context of the ECA Explain the basis of assessment of and contribution payable by an employer to the Accident Fund Analyse the duties of a principal in the context of the ECA Briefly discuss the right of an employee to receive compensation Summarise the different benefits under the ECA Discuss the duty to report accidents to the Social Security Commission State which accidents should be reported Apply the contents of this unit to provide a solution to a practical settings Additional reading Du Bois, F. (Ed.) (2007). Wille s Principles of South African Law (9 th ed.). Cape: Town: Juta & Co. Olivier, M.P., Smit, N., Klalula, E.R., Mhone, G.C.Z. (2004). Introduction to Social Security. Durban: LexisNexis Butterworths Van Rooyen, J.W.F. (Ed.) (2003): Namibian Labour Lexicon: Vol. 1: Essential Expressions. Windhoek: Namibia Institute for Democracy. Van Rooyen J.W.F. (Ed.). (2011): Namibian Labour Lexicon: The Labour Act, 2007 A to Z Vol. 2 (revised edition). Windhoek: Macmillan Education Namibia Publishers. 30 of 1941 Labour Act 11 of 2007. Namibian Constitution Website: www.lac.org.na 139
Website: www.saflii.org Website: www.ssc.org.na 1. Objective of the The Accident Fund, established by the, Act No 30 of 1941 (as amended), provides for the payment of reasonable medical expenses and compensation in respect of work-related injuries or industrial diseases contracted by employees out of and in the course of their employment or for death resulting from such accidents and diseases. 2. Definitions in relation to the 2.1 Employee Any person who has entered into a contract of service or of apprenticeship or learnership with an employer, including domestic employees employed in a private household. The term employee is defined in Section 3 of the Act. Among the persons excluded from the scope of the Act are: Members of the Namibian Police Force while employed in a war or other emergency to assist in the defence of Namibia; Members of the Namibian Defence Force while employed in a war or other emergency to assist in the defence of Namibia or any international peacekeeping operation; Persons employed as seamen or airmen, unless certain prescribed circumstances apply; 1 Person earning more than a prescribed maximum per annum 2, unless the employer has made special arrangements with the Commission to that effect and complied with the conditions prescribed by the Commission in this respect; Person who contracts for the carrying out of work, and him/herself engages other persons to perform such work; Persons who work solely for a commission or a share in the taking. If an employee s annual earnings exceed a prescribed maximum he/she is not regarded as an employee in terms of Section 3(2)(b) of the Act, unless the employer has entered into a special arrangement with the Commission 1 Refer to Sections 3(1)(b), 10(1A) and 11 of the 2 As determined by the Minister from time to time and published in the Government Gazette. N$ 81 300 as from 1 March 2013 (GN 250 published in Government Gazette No. 5291 of 20 September 2013) 140
in terms of Section 3(1)(b) of the Act, and assessment on such employee s wages are paid. 2.2 Employer Any person, including the State, who employs an employee. 2.3 Accident It is an unplanned/unforeseen occurrence of which a date, time and place can be determined that arises out of and in the course of an employee s employment and results in either death, personal injury or a scheduled industrial disease being contracted owing to the nature of his/her occupation. The conveyance of an employee free of charge to or from his or her place of work by means of transport controlled and specifically provided by the employer is considered as part of the employee s employment, i.e. in the course of employment. 3. Registration by an employer Every employer carrying on business in Namibia shall, within fourteen (14) days of the date on which he or she commenced business, furnish the Social Security Commission (hereafter referred to as the Commission ) with the prescribed particulars of his or her business. An employer therefore has the obligation to register and make contributions to the aforementioned Accident Fund and there is no obligation on an employee to either register or make any contributions to the said Fund. 4. Assessment and contribution by employers In the period between 1-31 March every year, an employer has to submit a statement to the Commission in the prescribed form, reflecting the amount of wages paid to employees during the period 1 March until 28 February of the preceding year. The assessment is based on their annual wage bill and nature of business for their contribution to the Accident Fund. The amount of any assessment shall be paid by an employer to the Commission within 30 (thirty) days after the date specified in the notice of assessment. No assessment for the benefit of the Accident Fund shall be payable by the State in respect of employees in the employment of the public service. 141
5. Principals and contractors 3 Where a person, in this context referred to as a principal, in the course of or for the purposes of his or her business enters into a contract with any other person for the execution by or under the supervision of such person, referred to as the contractor, any employee engaged in such work shall be deemed to be the employee of the principal, unless and until such contractor is in respect of such work assessed as an employer and has paid all assessments due. The amount of compensation shall be calculated with reference to the earnings of the employee under the contractor as the employer. The Commission may, on request of the principal, issue a prescribed certificate in which it is stated whether the contractor is being assessed as employer and whether all assessments due had been paid in respect of the work contemplated. It is accordingly the duty of the principal to ensure that any assessment for which the contractor is liable, is paid, otherwise the principal could be held liable to pay such assessments. The principal will be able to recover assessments and/or compensation from the contractor if the Commission is of the opinion that such contractor would have been liable had he or she qualified as an employer in terms of the Act. The Commission may recover compensation from the contractor instead of the principal. In the event of failure to recover fully from one of them, the Commission may recover the balance from the other. The principal shall, however, only be liable in respect of accidents which occur on or about the premises on which the principal has undertaken to execute the work or which are otherwise under his or her control or management. 6. Right of employee to compensation 4 A benefit claim can only be considered if: All claims are lodged in the prescribed manner with the Commission or the employer concerned within 6 (six) months after the date of the accident, or in the case of death, within 6 (six) months from the date of death; and All supporting documents are attached to the claim, e.g. the original medical certificate. 3 Section 9 of the. 4 Sections 27-36 of the. 142
An employee will not be entitled to any compensation if the accident is attributable to the serious and wilful misconduct of the employee, unless the accident results in serious disablement, or the employee died and left a dependent wholly dependent on him or her. Serious and wilful conduct includes, among others, drunkenness or a contravention of any law made for the purpose of ensuring the safety or health of the employees. 7. Types of benefits under the Medical expenses Coneyance of an injured employee Temporary Partial - or Temporary Total Disablement Permanent Disablement Funeral/Burial expenses Compensation to survivors when an employee dies 7.1 Medical Expenses For a maximum period of 2 (two) years from the date of the accident, all reasonable medical expenses incurred by or on behalf of an employee in respect of medical treatment necessitated by an accident, may be defrayed from the Accident Fund. Where an employee, as a consequence of the injury, is unable to perform the essential actions of life without the constant help of another person, the Commission may grant an allowance towards the costs of such help. 7.2 Conveyance of an injured employee The reasonable expenses incurred for the conveyance of an employee injured in an accident to a hospital or his/her residence will be refunded from the Accident Fund. 7.3 Temporary Partial - or Temporary Total Disablement Temporary Partial - or Temporary Total Disablement means the temporary inability of an employee to perform a part of or the whole of the work at which he or she was employed at the time of the accident, or work similar thereto. In such an event periodical payments in lieu of a part or the whole of the salary will be paid by the Commission. Compensation is calculated on the monthly earnings of an employee at the time of the accident. Compensation for Temporary Total Disablement is payable to an injured employee during temporary total disablement by way of periodical 143
payments at a rate of 75% of his/her monthly earnings up to a prescribed maximum amount of earnings 5 ; No compensation is payable in respect of the first three days of disablement which lasts for less than two weeks. To calculate the period of absence from work the first day of disablement is taken as the day on which the employee ceases work as a result of the injury without completing his/her shift. Sundays and Public Holidays falling at the beginning or end of the period of absence, are included. Periods of absence from work may be reckoned in terms of weeks. An absence of seven calendar days (i.e. including Sundays and public holidays) is regarded as an absence of one week. An absence of five calendar days thus is 5/7 of a week. 7.4 Permanent Disablement Permanent Disablement is payments made in respect of any disabling anatomical defect or loss of function as a result of an injury on duty. Compensation for permanent disablement assessed at 30% or less, is paid in a lump sum, based on 15 times the employee s monthly earnings up to a prescribed maximum amount of earnings. 6 Where the degree of permanent disablement is less than 30% the lump sum is reduced proportionately. If the degree of permanent disablement is more than 30%, compensation takes the form of a monthly pension, calculated on the employee s monthly earnings up to a prescribed maximum of such earnings. 7 The pension for total disablement (100%) is the same as the periodical payments for temporary total disablement. If an employee s permanent disablement is more than 30% but less than 100%, a pro rata pension is paid. The assessment of the degree of disablement is the function of the Commission. 7.5 Amount of compensation payable when an employee dies If an employee dies as a result of an accident, the surviving spouse is entitled to the payment of: 5 At the time of preparation of this guide, the maximum amount was determined at N$ 5 500 (GN 96, published in Government Gazette No. 4919 of 2 April 2012) 6 At the time of preparation of this guide, the maximum lump sum was determined at N$ 3 300 (GN 96, published in Government Gazette No. 4919 of 2 April 2012) 7 See footnote 5 above. 144
A lump sum up to a prescribed maximum 8 or twice the employee s earnings, whichever is the lesser amount and A monthly pension equal to 40% of the pension to which the employee would have been entitled if he/she had been totally and permanently (100%) disabled 9 ; Each child under 18 (eighteen) years of age is entitled to a monthly pension equal to 20% of the pension that would have been payable to the employee if he/she had been totally and permanently disabled. For the purposes of the ECA a child means a son or daughter under the age of 18 (eighteen) years, a child born out of wedlock of an employee and his or her spouse, a posthumous child, a step-child and an adopted child, if the Commission is satisfied that the child was in fact adopted. The pension payable in respect of a child shall cease when the child attains the age of 18 (eighteen) years, or dies or marries before reaching that age. 7.6 Funeral/ burial expenses An allowance, not exceeding an amount determined by the Minister of Labour and Social Welfare from time to time and published in the Government Gazette 10, may be paid towards the necessary burial expenses from the Accident Fund. Reasonable burial expenses can only be paid upon submission of proof of such expenses. 8. Which accidents must be reported? The employer must report all occupational accidents or alleged occupational accidents that involve medical expenses or absence from work for more than three days in the prescribed manner after having gained knowledge thereof. The employer of an injured employee or a contractor working on the premises is obliged to report such injury to the Commission immediately after gaining knowledge thereof. Any accident as described above, whether or not the employer agrees that such injury arose out of and in the course of his/her employment, has to be reported. Failure to report an alleged occupational accident is a criminal offence and the Commission may impose a penalty on the employer up to a maximum of the full amount of the claim. 8 At the time of preparation of this guide, the maximum lump sum was determined at N$ 5 500 (GN 96, published in Government Gazette No. 4919 of 2 April 2012) 9 See par. 7.4 above. 10 The maximum amount of N$ 3 120 had been applicable at the time of the preparation of this study guide. 145
An accident that is of such a minor nature that it does not fall within any of the aforementioned categories need not be reported provided a suitable record is kept so as to permit full particulars being given on the prescribed forms in the event of possible subsequent complications. The doctor in charge should also furnish the Commission with the First Medical Report written directly after his or her first examination containing a full clinical description of injuries sustained in order to enable the Commission to assess liability for the claim, in terms of the Act. 9. Fatal Accidents In fatal cases, the following documents must also be submitted with the claim: Claim for Compensation; Declaration by dependent, surviving spouse of the deceased employee, if the employee leaves a surviving spouse and/or children under 18 years of age as dependents; Documentary proof of death (certified copy of death certificate); Certified copy of marriage certificate; Certified copy of Identification Document; and Certified copies of birth certificates of children under 18 (eighteen) years. 10. Recording of accidents by the Commission Upon receipt of the duly completed Employer s Report of Accident, the Commission will issue a letter of acknowledgement showing the claim number allocated to the particular case, and will send it to the employer concerned. This letter does not imply that the claim has been accepted yet. 146