Can an unpaid learner practically claim workmen’s compensation?
We are often faced with interesting practical challenges. One such challenge surfaced recently (and is likely to become more common as the government pushes for increased employment through learnerships and work experience programmes).
Background
A company offered a work experience programme where they paid for students travel in order for the students to come to their premises and learn more about the trade. In the course of this work experience one of the learners was injured and the company tried to claim compensation from the Compensation Commissioner, but faced some real challenges.
Challenges
The challenge came in three parts:
- Is the learner entitled to claim? Where there is a contract of service the learner should be entitled to claim compensation under the Act.
- Is the learner able to claim? As the learner is not being paid any salary often companies will not put the learners on to payroll. Where the learner is not on payroll the employer is usually unable to show the Compensation Commissioner that the learner is employed and levies have been paid on their behalf. It is unusual for an employer to think far enough ahead and include unpaid learners (not on payroll) on their annual return of earnings.
- What can the learner claim? Even if the employer has included the learners on their return of earnings or can show evidence of them being part of their headcount the first question the Compensation Commissioner will ask is to see their payslip and proof of earnings to support the claim calculation. Where they have not been paid anything, the claim is zero.
This leads to a very inequitable position where the learner should be able to claim, but the claim is worthless.
What to do?
There is no easy answer to this. In a perfect world the legislation would take this into consideration. The only alternatives are civil i.e.
- Protect the company from any claims for compensation by getting learners to sign an indemnity form; and
- Where the company is interested in looking after learners, consider general insurance products to cover the learner in the event of an incident at work
We are currently putting such examples to the Payroll Authors Group and other influential stakeholders in an attempt to get some clarity on the law in this regard and more importantly the practical application of the law. Unless there is a process that can be successfully followed to resolve a valid claim this would unfortunately remain a loose end that prejudices those people who need the benefits and cover the most.