As the modern workplace continues to evolve, temporary employment and the use of labour brokers have become increasingly common across a range of industries in South Africa. This shift in employment dynamics raises pertinent questions about accountability and legal responsibilities, particularly when it comes to occupational injuries. One question that often arises in this context is: can an employee of a Temporary Employment Service ("TES") claim civil damages for work-related injuries from the client of the labour broker?

The Compensation for Occupational Injuries and Diseases Act, 1993 ("the Act" or "COIDA") aims to provide compensation for injuries sustained and death caused while working. Importantly, COIDA prohibits employees from recovering common law delictual damages from their employer for injuries sustained whilst at work if they are entitled to compensation in terms of the Act.

In the recent decision in Hobongwana v Benteler South Africa (Pty) Ltd, the Eastern Cape High Court decided on whether a worker hired through a TES can seek civil damages for injuries from the company they were temporarily working for if they get hurt on the job.

In this case, the employee, Mr Hobongwana, was employed by a TES and was assigned to work at Benteler.

Mr Hobongwana was instructed to work on the "SSB line" in what was an inherently high-risk work environment. After sustaining an injury whilst working on the SSB line, Mr Hobongwana lodged a civil claim for delictual damages against Benteler in the High Court. Mr Hobongwana's claim was based on the argument that:

  • Benetler had breached its legal duty towards him by failing to properly instruct and supervise him;
  • Benteler had been negligent and its employees had been negligent in not doing so; and
  • it it were not for this negligence, he would not have sustained the injury.

Having found that Benteler had failed to adequately train and supervise Mr Hobongwana, the High Court held that that "the defendant, by way of the aforesaid failures, failed to take reasonable steps to guard against the inherent dangers in operating the SSB line, which it should and could have done so in the circumstances."

Section 35 of COIDA provides that an employee may not institute a claim for damages against an employer arising from an accident at work caused by the negligence of the employer or its employees if the employee is entitled to claim compensation in terms of COIDA. This protection did not apply to Benteler because it was not Mr Hobongwana's employer. There is no equivalent to section 198A of the Labour Relations Act, 1996 which provides that, in certain circumstances, a client of a TES will be regarded, for the purposes of the LRA, as the employer of a person assigned to it by the TES.

The court accordingly found that Mr Hobongwana was not prevented from instituting a delictual claim for damages against Benteler.

But it is also possible that Mr Hobangwana may have had a claim for compensation in terms of COIDA. This could have been the case if the incident that caused the injury arose out of and in the course of his employment with the TES. It is not inconceivable that this requirement could be met even if a TES employee is working on the client's workplace when the injury was incurred.

The possibility that an employee who is entitled to compensation in terms of COIDA, and therefore cannot sue his employer in delict, may also have a claim against another party on the basis of that party's negligence is recognised in section 36 of COIDA but it is also provided that in assessing damages to be paid by the other party a court must have regard to the compensation paid in terms of COIDA.

Depending on the nature of the client's workplace and the health and safety hazards in the workplace, the implications of the above may be something that a client may wish to take into account before making use of TES. This is especially the case in the light of the fact that an employer is, in terms of the Occupational Health and Safety Act, and the Mine Health and Safety Act responsible for the health and safety of all persons on its premises, irrespective of whether they are employees or not.

Reviewed by Peter le Roux, an Executive Consultant in ENSafrica's Employment department.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.