State as employer under scrutiny in doctor's case

The Constitutional Court was on Tuesday asked to decide whether the state as an employer should be regarded as a single entity or separate components.

The decision will determine whether a state-employed doctor who was injured at a military hospital has a claim against the minister of defence.

Dr Liesl-Lenore Thomas,  who was employed by the Western Cape health department as a medical registrar, fell on the stairs and was injured at 2 Military Hospital in Cape Town in 1999. She had been seconded to work at the hospital, which was under the control of the ministry of defence.

Relying on the Compensation for Occupational Injuries and Diseases Act (COIDA), she lodged a claim for compensation for her injuries with the provincial health department. The compensation was paid out to her.

The COIDA provides a system of no-fault compensation for disability caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment. The Act also grants immunity to employers against a claim that an injured employee might bring.

In terms of the act, an employee cannot bring a claim for damages against the employer.

Employers contribute to a centralised fund, from which employees claim compensation if they get injured or disabled in the workplace.

In addition to her COIDA claim, Thomas also lodged a claim for damages in the Western Cape High Court against the Minister of Defence and Veteran Affairs.

The ministry said the COIDA prevented Thomas, as an employee of the state, from claiming damages from the state for injuries sustained while on duty. The high court agreed and dismissed her claim.

However, the Supreme Court of Appeal held that for the purposes of the COIDA, the employer of Thomas was not the state as a single, overarching entity but the head of the Western Cape Department of Health. It said Thomas was entitled to pursue her claim.

The minister appealed to the Constitutional Court and on Tuesday, Advocate Anwar Albertus SC, for the minister, told the court that the minister was immunised from Thomas’s claim by virtue of being an employer.

“The department of defence, as well as the provincial government of the Western Cape, are all components of an employer known as the state,” Albertus said.

However Advocate Murray van Heerden SC, for Thomas, said that under the COIDA, his client did not have a delictual claim against her employer, the provincial health department, but she did have a claim against the minister of health.

The court reserved judgment.