In the evolving landscape of the modern workplace, temporary employment and the utilization of labour brokers have become prevalent practices across various industries in South Africa. This paradigm shift in employment dynamics prompts crucial considerations regarding accountability and legal responsibilities, particularly concerning occupational injuries. One frequently asked question in this context is whether an employee of a Temporary Employment Service (TES) can pursue civil damages for work-related injuries from the client of the labour broker.

The Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA) is instrumental in providing compensation for injuries sustained and deaths caused while on the job. Significantly, COIDA prohibits employees from seeking common law delictual damages from their employer for work-related injuries if they are entitled to compensation under the Act.

A recent decision by the Eastern Cape High Court in the case of Hobongwana v Benteler South Africa (Pty) Ltd delved into the question of whether a worker hired through a TES can claim civil damages for injuries sustained on the job from the client company.

In this case, Mr. Hobongwana, an employee of a TES, was assigned to work at Benteler and sustained an injury while working in a high-risk environment. He subsequently filed a civil claim for delictual damages against Benteler, contending that the company had breached its duty by failing to provide proper instructions and supervision, thus resulting in negligence leading to his injury.

The High Court, finding that Benteler had indeed failed in its duty to train and supervise Mr. Hobongwana adequately, held that the company had neglected to take reasonable steps to mitigate the inherent dangers in operating the specific work line.

Section 35 of COIDA stipulates that an employee cannot file a claim for damages against an employer if compensation can be sought under COIDA. However, this protection does not extend to the client company (Benteler, in this case) since it is not the direct employer of Mr. Hobongwana. Notably, there is no equivalent provision to section 198A of the Labour Relations Act, 1996, which deems a client of a TES as the employer in specific circumstances.

Consequently, the court ruled that Mr. Hobongwana was not barred from pursuing a delictual claim for damages against Benteler. However, it is essential to consider that Mr. Hobongwana might have been eligible for compensation under COIDA if the injury occurred in the course of his employment with the TES.

Section 36 of COIDA acknowledges the possibility that an employee, unable to sue their employer due to COIDA compensation, may still have a claim against another negligent party. However, the court must consider the compensation received under COIDA when assessing damages to be paid by the other party.

Organizations utilizing TES should be mindful of the implications based on the nature of their workplace and the associated health and safety hazards. This consideration is especially pertinent given that, according to the Occupational Health and Safety Act and the Mine Health and Safety Act, employers bear responsibility for the health and safety of all individuals on their premises, regardless of their employment status.

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