I’m on contract, got injured at work; can my employer compensate?

Dear Vivian,

I am an electrical engineer for a construction firm in Nakuru. I was recently involved in an accident at the construction site leading to limb injury. My contract was oral although I earn my wages monthly. Since I am not insured, can my employer compensate and cater for my hospital bills?

Stella Baraza, Nakuru.

Dear Stella,

In the Work Injury Benefit Act (Wiba), “employee” means a person employed for wages or a salary under a contract of service and includes an apprentice or indentured learner. Notably, this section applies irrespective of whether the contract is expressed or implied, oral or written, and whether remuneration is calculated by time or by work done, whether by the day, week, month or any longer period, and whether the payment is in cash or recognised legal tender.

An employer is required to report an accident to the Director of Occupational Safety and Health Services in the prescribed manner within seven days after receiving notice of an accident or learning that an employee has been injured.

An employer is liable to pay compensation in accordance with the provisions of this Act to an employee injured while at work.

However, it is a requirement of the law that all employees be insured. The office of the Director of Occupational Safety and Health Services established under Wiba hears work injury-related claims.

Until 2019, the office had not been operationalised because of the dispute over its mandate and Wiba’s constitutionality. Once the Act came into place, the Law Society of Kenya petitioned the High Court.

On December 3, 2019, the Supreme Court upheld the judgment of the Court of Appeal noting that Wiba was in line with the Constitution of Kenya, 2010.

Your compensation claim to this office should be within 12 months after the accident. You may ask why not lodge directly at the courts. These practice directions were affirmed by the Chief Justice last week, with an aim to ensure uniformity in court experience.

Further, Section 16, as read with sections 23 and 52 of Wiba, does not limit access to courts but creates a statutory mechanism where any claim by an employee under the Act is subjected, initially, to a process of alternative dispute resolution mechanism starting with an investigation and award by the Director and thereafter, under Section 52 an appeal mechanism to the Employment and Labour Relations Court.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).