Workmen’s compensation and volunteers

Are volunteer emergency responders – such as a firefighters – entitled to claim compensation if they are injured on duty? ALBERT MUSHAI and ROBERT VIVIAN examine the question

Recently, Australia was confronted by widespread forest fires. Dealing with the high number of infernos outstripped the capabilities of full-time manpower and a large number of volunteers quickly rallied to the call. Not surprisingly, the question arose about what would happen if any of them were injured while fighting the flames. Would they receive workmen’s compensation?

Since the fires were widespread, many volunteers travelled long distances to lend their services – and hence a further question arose: what would happen if any of them were to sustain injury in a motor accident while in transit to or from a fire site? Definitive answers were not immediately available – but these issues can be discussed in broad outline.

Similar questions and issues arose in South Africa some time ago in a different context – and workmen’s compensation legislation was amended to provide answers, at least in part.  This article examines some of those developments.

The position in South Africa draws from the recognition that some factories are situated in isolated areas – considerable distances from the nearest municipality where a fire station exists. Even within municipalities, there could be large factories and, if a fire breaks out, it is important to fight the flames immediately, while waiting for the arrival of the fire brigade.

In view of this, many factories established emergency response teams, more often than not comprising employees who were unlikely to be professional firefighters or other professional emergency personnel.  In their full-time jobs, they could, for example, be artisans.

A further development arose: if a fire or other emergency broke out at a factory, emergency response teams from other factories would rush to offer assistance. As is the case in Australia, the question of injures surfaced and it was deemed necessary to address the issue through legislation. Therefore, the already amended section 28 of the now repealed Workmen’s Compensation Act 30 of 1941 was replaced in terms of section 2 of Act 24 of 1981.

The section was titled Accidents during training for – or performance of – emergency services. As is well known, the 1941 Act was repealed and replaced by the Compensation for Injuries and Diseases (COID) Act 130 of 1993.  This section reappeared as section 25 of COID and reads as follows:

If an employee meets with an accident

(a)  while he is, with the consent of his employer, being trained in organised first aid, ambulance or rescue work, firefighting or any other emergency service;

(b)  while he is engaged in or about his employer’s mine, works or premises in organised first aid, ambulance or rescue work, firefighting or any other emergency service;

(c)  while he is, with the consent of his employer, engaged in any organised first aid, ambulance or rescue work, firefighting or any other emergency service on any mine works or premises other than his employer’s, such accidents shall, for the purposes of this Act, be deemed to have risen out of and in the course of his employment.

Even in the absence of this section, the injured employee may well have been entitled to compensation if injured. The right to receive compensation is set out in terms of section 22 which reads:

If an employee meets with an accident resulting in his disablement or death, such employee or the dependants of such employee shall, subject to the provisions of this Act, be entitled to the benefits provided for and prescribed in this Act.

Therefore, the injured person had to be an employee who meets with an accident. The definition of employee more or less coincides with the usual idea of an employee:

(a) “employee” means any person who has entered into or works under a contract of service… with an employer, whenever the contract is express or implied or oral or in writing…

Clearly, a problem could arise if the injured person is only a volunteer. That person may have difficulties meeting the obligation to show he or she is an employee. Thus, an Australian volunteer may have a problem.

On the other hand, if a person is employed as an artisan and a fire breaks out in circumstances where the same employee is part of the team fighting the fire and is injured, he or she remains an employee and meets the requirement of being an employee. This would be true even if fighting a fire at premises not belonging to his or her employer.

A further requirement in terms of the Act is that the employee has to be involved in an accident, which is clarified as: “an accident arising out of and in the course of the employee’s employment”. Clearly, this raises a number of questions.

It could be argued that a person employed as an artisan is not employed as a firefighter. Consequently, an injury to such a person while fighting a fire is not in the course of employment. He or she has been employed to do the work of an artisan and not of a firefighter. The position becomes even worse if injury occurs while fighting a blaze at a place other than an employer’s place of business.

Of course, these defects can be remedied in part if the employee has a properly drawn up job description. On the other hand, it is not ideal to have compensation dependent on the existence of a job description.

Matters become even more complicated if injury to the employee occurs while he or she is undergoing training. The training may even take place after hours at premises other than that occupied by the employer.  From these uncertainties, it is clear why it became necessary to amend the Act.

Another issue relates to the question of being injured while being transported to or from an emergency site.  Section 22(5) deals with transportation:

For the purposes of this Act the conveyance of an employee free of charge to or from his place of employment for the purposes of employment, by means of a vehicle driven by the employer himself or one of his employees and specially provided by his employer for the purpose of such conveyance, shall be deemed to take place in the course of such employee’s employment.

Therefore, an employee who sustains injury while being conveyed in transport provided by the employer qualifies for compensation. These provisions (especially those relating to compensating volunteers) also seek to encourage people to help during emergencies without being inhibited by thoughts of what could happen to them if they sustain an injury.