I was injured at work and have been told I will not receive compensation. My case is closing soon. Please help!

The long answer

According to the Labour Guide, if an employee has a lifelong injury, the employer should determine whether it is possible to allocate them another job or modify their work responsibilities or environment to suit their impairment.   

They say that “particular consideration” should be given to employees who are injured at work, as the courts have indicated that the employer has a greater duty to accommodate the incapacity of employees if they were injured at work. 

SME Labour Support says that when an employee is unable to perform their normal duties due to injury, the employer must set up a meeting with the injured employee to look at ways of accommodating them, considering the extent of the injury and what it means for the employer’s business.

If adjustments are made but prove ineffective, the employer can hold a final hearing to evaluate whether continued employment is feasible with the accommodations the employer has put in place, and whether the employer is satisfied that all reasonable steps have been taken to help the employee. 

They say that when all alternatives are investigated during this meeting and no suitable alternatives are found to reasonably accommodate the employee, given the nature and the extent of the injury, the employer may terminate the employee’s services on the grounds of injury. An employer is not required to accommodate an employee if it is practically impossible or would put severe financial strain on the business. 

It seems clear that your employer failed to carry out his duty of inviting you to a meeting to discuss alternatives with you.

Let’s look at your resignation letter:

In labour law, an employee does not have a legal right to withdraw a resignation. Regarding a 2022 Labour Court case (Mohlwaadibona v Dr JS Moroka Municipality), Cliffe Dekker Hofmeyr said that the court found that resignation is by definition a voluntary and unilateral act that puts an end to the employment relationship. It takes effect the moment it is communicated to the employer and cannot be withdrawn unless the employer consents to it.

But in your situation, it might be possible to make the case to the CCMA that your resignation wasn't truly voluntary, but was because your employer failed to accommodate your injury or guide you to apply for compensation. That would be a claim of “constructive dismissal” where you could seek reinstatement or benefits.  

But before we get into constructive dismissal, which is a very difficult thing to prove, perhaps you should first write a letter to the employer saying that 

1. You were suffering great pain and distress, something which was well known at work.

2. No consultation with the employer happened about accommodating your injury to enable you to work.

3. You ask the employer to agree to cancel the resignation and allow you to return to work and be accommodated, or, if no accommodation can be made, that you be assisted to apply for compensation.

About constructive dismissal: 

SME Labour Support says that according to the labour court, in order to file a claim for constructive dismissal, an employee must prove that (1) they (the employee) ended the employment contract, (2) continuing to work there had become unbearable, and (3) the employer’s actions or omissions were the cause of the unbearable circumstances. 

Labour Guide says that if you bring a constructive dismissal case to the CCMA, it is also up to the employee to prove that there was no other way to resolve the issue except by resigning. The employer doesn’t have to prove that he did not introduce any intolerable condition – it is the employee who has to prove that he did.

Labour Guide also says that many referrals of constructive dismissal to the CCMA have not succeeded because the employee failed to prove the introduction of any intolerable working condition, which would amount to the employer turning his back on the employment contract.

As your case will be closed in February, I think you should also seek legal advice urgently. You could approach Legal Aid, which is a means-tested organisation that must assist people who can’t afford a lawyer, or an organisation like Lawyers for Human Rights or the Legal Resources Centre. 

They can assess if the circumstances (severe injury at work, no consultation with employer about accommodating your painful disability, i.e. lack of necessary support from employer) could establish grounds for a constructive dismissal case at CCMA. 

These are their contact details

• Legal Aid

Tel: 0800 110 110 (Monday to Friday 7am to 7pm) 

Please Call Me: 079 835 7179

Email: communications2@legal-aid.co.za

• Lawyers for Human Rights

Email: info@lhr.org.za

Tel: Musina 015 534 2203

Durban: 031 301 0531

Pretoria: 012 320 2943

Johannesburg: 011 339 1960

Cape Town: 021 424 8561

• Legal Resources Centre

 Email: info@lrc.org.za

 Tel: Johannesburg: 011 836 9831

 Cape Town: 021 481 3000

 Durban: 031 301 7572

Wishing you the best,
Athalie