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Compensating Employees Who Suffer Work-Related Psychiatric Harm in the Course and Scope of Their Employment

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Compensating Employees Who Suffer Work-Related Psychiatric Harm in the Course and Scope of Their Employment View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by South East Academic Libraries System (SEALS) COMPENSATING EMPLOYEES WHO SUFFER WORK-RELATED PSYCHIATRIC HARM IN THE COURSE AND SCOPE OF THEIR EMPLOYMENT A thesis submitted in fulfillment of the requirements for the degree of MASTER OF LAWS of RHODES UNIVERSITY by Meryl du Plessis 699D1955 September 2007 DECLARATION FORM Declaration submitted by a candidate presenting a thesis for examination Please complete using BLOCK LETTERS Surname: ……………………………………………………………………………….. First names: ……………………………………………………………………………. Title of thesis: ………………………………………………………………………….. ………………………………………………………………………………………….. ………………………………………………………………………………………….. The thesis which I now submit for the degree of: ……………………………………... is not being published and I hereby grant to Rhodes University permission to make additional copies of it, in whole or in part, for the purposes of research. I certify that this thesis has not been submitted for a degree in any other university and that it is my original work except as follows: ………………………………………………………………………………………….. ………………………………………………………………………………………….. ………………………………………………………………………………………….. Signed: ……………………………….. Date: …………………… ii DEDICATION This work is dedicated to my grandparents, Barney, Clara, Duif and Jan; and my parents, Franklin, Mercia and Alida. I am ever grateful that I am because of you. iii ACKNOWLEDGEMENTS I would like to thank God for the strength and the ability to write this thesis, for being my best Friend and my constant Companion. I would also like to thank the following persons who have shared in this journey: My supervisor, Prof Rob Midgley, for his hard work, for always making time for me, for his gentle and patient guidance, his technical input and particularly for the polite shredding of my writing; my family, especially my parents, Nathan, Myrtle, Lyndon, Perlé and Kim, for their ever-present support and their faith in me; Rósaan Kruger, for her willingness to act as a sounding board, for providing information when necessary and for always offering encouragement when I became despondent; my friends, Farzana Badat, Phephelaphi Dube, David Brimer, Bradley Minnaar and Diorgo Jonkers, for showing genuine interest in my progress and for always listening when I needed to voice fear, anxiety or frustration; my colleagues, Mathias Nyenti and Lydia Akena Apon, for putting up with my thesis-driven moods and for offering advice and providing humour when there didn’t seem to be light at the end of the tunnel; and Prof Marius Olivier, who showed enthusiastic interest and offered advice, as well as Dr George Mpedi, who kindly assisted me with several technical aspects. iv TABLE OF CONTENTS DECLARATION FORM ........................................................................................ii DEDICATION.......................................................................................................iii ACKNOWLEDGEMENTS ...................................................................................iv TABLE OF CONTENTS .......................................................................................v ABSTRACT ........................................................................................................xii CHAPTER 1: GENERAL INTRODUCTION ........................................................1 1.1 DEFINITION OF WORKPLACE STRESS AND ITS CAUSES ..................1 1.2 WORKPLACE STRESS IN CONTEXT.....................................................3 1.2.1 Globalisation and internationalisation of production processes.....4 1.2.2 Decline of standard employment relationships .................................5 1.2.3 Marginalisation of care work ...............................................................5 1.2.4 Economic and technological change..................................................6 1.2.5 South Africa’s historical inequalities..................................................7 1.2.6 Costs of workplace stress ...................................................................7 1.3 AIM OF THE STUDY ................................................................................8 1.3.1 Specific limitations...............................................................................8 1.4 THE LEGAL ISSUES................................................................................9 1.4.1 Constitutional considerations .............................................................9 1.4.2 The common law and/or statutory regulation?................................10 1.4.3 Employer’s legal duty.........................................................................13 1.4.4 Role of negligence..............................................................................13 1.4.5 Causation ............................................................................................14 1.4.6 Requirements specific to COIDA ......................................................14 1.5 CONCLUSION .........................................................................................15 CHAPTER 2: COMMON LAW OR WORKERS’ COMPENSATION? ...............17 2.1 INTRODUCTION......................................................................................17 2.1.1 Societal, organisational and individual context of occupational psychiatric harm.................................................................................17 2.2 THE STATUTORY COMPENSATION SYSTEM .....................................19 v 2.2.1 Limitation of common-law right to sue.............................................20 2.2.2 The condition of the compensation system.....................................21 2.2.2.1 Benefits under COIDA...................................................................21 2.3 THE COMMON LAW ...............................................................................28 2.4 RELATIONSHIP BETWEEN STATUTORY LAW AND THE COMMON LAW.........................................................................................................31 2.5 STATUTORY REGULATION OR THE COMMON LAW? .......................33 2.5.1 Constitutional considerations ...........................................................36 2.5.1.1 The Bill of Rights and the Constitution’s founding values..............36 2.5.1.2 The right to access to social security.............................................37 2.5.1.3 International law obligations ..........................................................39 2.5.2 Arguments against extending the compensation system ..............41 2.5.2.1 Floods of claims and possibility of abuse ......................................41 2.5.2.2 The legislature must extend coverage...........................................42 2.5.2.3 The common law is more suited to deal with evidential difficulties 43 2.5.2.4 The legislature must impose strict liability .....................................43 2.5.3 Alternative solutions ..........................................................................44 2.6 CONCLUSION .........................................................................................45 CHAPTER 3: PSYCHIATRIC HARM IN THE COMMON LAW.........................46 3.1 INTRODUCTION......................................................................................46 3.2 THE NATURE OF THE HARM ................................................................50 3.2.1 Terminology ........................................................................................50 3.2.2 History of the harm required .............................................................51 3.2.3 A medical perspective on psychiatric injury....................................53 3.2.3.1 Classification of disorders ...............................................................56 3.2.3.2 Post-Traumatic Stress Disorder ....................................................58 3.3 REQUIREMENT OF ‘RECOGNISED PSYCHIATRIC ILLNESS’ ............63 3.3.1 Should claims for mere mental distress be allowed? .....................66 3.4 CONSTITUTIONAL CONSIDERATIONS ................................................68 3.4.1 Assumption regarding horizontal application of the Bill of Rights68 3.4.2 Constitutional rights that may be affected .......................................69 3.4.3 Indirect application of the Bill of Rights...........................................70 3.4.3.1 The redress provided by current common-law delictual actions ....72 3.4.3.2 Considerations within the law-of-obligations paradigm..................79 3.4.3.3 Public policy generally...................................................................80 3.4.3.4 Floods of litigation and limitless liability .........................................82 vi 3.4.3.5 Successful litigation of fraudulent claims .......................................84 3.4.3.6 Difficulties of proof.........................................................................86 3.4.3.7 Compensation culture....................................................................86 3.4.3.8 Discouragement of rehabilitation ...................................................87 3.4.3.9 Alternative and/or complementary measures to prevent workplace psychological harm........................................................................88 3.4.3.10 Should the common law be developed?........................................89 3.5 CONCLUSION .........................................................................................90 CHAPTER 4: WRONGFULNESS AND THE EMPLOYER’S LEGAL DUTY ....92 4.1 INTRODUCTION......................................................................................92
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