Injury on duty

[acerb38]

Goodday I was injured on the 27th of July 2013 at work,what I want to find out is what payment must the company pay me.we get nightshift allowance when we work nightshift,we get booked for weekends for overtime,so I want to find out if they must pay me nightshift allowance and overtime that I have lost,any help will. Be highly appreciated.

[Mike C]

If the employee is booked of due to an IOD (Injury on Duty) for 4 days or longer, but less than 3 months, the employer pays the injured employee at a rate of 75% of basic wages only, from day 1 until the employee returns to work.

If the employee is booked off due to an IOD for longer than 3 months, the employer pays the injured employee at a rate of 75% of basic wages, from day 1 for 3 months and nothing thereafter. Once the 3 month period expires, the injured employee must claim his money from the compensation fund himself.

It is important to know that it is illegal to pay for IOD's from sick leave.

[acerb38]

Hi Mike why I am asking because the labourguide has this on their website.
"Please note that earnings are not only the basic salary of the worker. The earnings of the worker must be the remuneration that he or she receives from the employer including the following:

the value of any food or quarters or both supplied by the employer;
any overtime payment or other special remuneration in cash or in kind of regular nature or for work ordinarily performed;
any other remuneration in cash or in kind to an employee by virtue of his/her contract of service, including commission, cost of living allowance, and incentive or other bonuses"

[Mike C]

Hi acerb38 - yes indeed that is their definition of earnings - these are those items received on a regular basis.

It does however exclude:

payment for intermittent overtime;
payment for non-recurrent occasional; services;
amounts paid by an employer to an employee to cover any special expenses;
exgratia payment whether by the employer or any other person;
travelling and subsistence allowances.

I suppose there would be some debate as to what is regular and what is intermittent.

The employer could argue that overtime or nightshift is not always worked. The employee would have a case by arguing that they have worked (say) 5 hours overtime every month for the last 6 months.

Perhaps one of our legal experts can jump in here and help.

[Dave A]

Additional items over and above basic pay would be determined from the basic employment package. When it comes to overtime, "...of regular nature..." is the key when it comes to claiming overtime due while being absent from work arising from an IOD incident. It needs to be consistent to be considered regular, essentially arising from a schedule of regular duties.

[sterne.law@gmail.com]

We should take guidance from the BCEA.
When calculating leave pay, for example, the average earned over the previous 17 weeks. This can give you an hourly/weekly/ monthly rate as averaged.
It removes the decision of regular/intermittent and creates a mathematical average that is directly in proportion.
If person in last week worked 10 hrs of overtime, they can't expect, the weekly wage to be calculated as 55 hrs, for example. Instead 10hrs divided into 17 weeks, equals .7 hrs added to weekly wage. (The commissioner may try escape this particular example as irregular)
Further, overtime that arose from a sudden event, e.g. a strike or catastrophe, could easily be classified as irregular/intermittent. Intermittent would essentially be a bonus upon which the employee has not become dependant.