Even though it has been more than a century since the advent of the labour laws and unions of this day and age it is still not uncommon to find people working longer hours than what is allowed by law and being put under more stress and at greater risk of their safety than what the law permits.
If you get physically injured at your place of work you have recourse with the Workmen's Compensation Commissioner.
What about mental health disorders or stress-related diseases that result from a hostile work environment, though? Are these just things that come with the territory that should be accepted?
It should not be. No matter where you work or what you do- nobody- and I mean NOBODY- has a right to impair your physical or mental health.
What can you do, however, if you find that your work environment gets worse with each passing day and resigning just is not an option for you? The short answer is that the legal remedy with which to stop any continued infringement upon any of your rights is an interdict. The legal remedy with which to claim compensation for damages suffered is action proceedings which most of us know as the common lawsuit.
Both of these remedies require certain facts to be proven, however, and this is mainly what this article is about. How does one go about proving all the facts necessary to successfully finalise legal proceedings against your employer for detriment to your physical or mental health suffered because of the wrongful conduct of your employer?
Well- whether you choose to apply for an interdict or to sue for damages the court will require proof of the following:
1. Proof of the damages
Your word shall not be enough here. Especially with conditions that have only internal symptoms like ulcers you shall need written confirmation by your doctor of his/ her diagnosis. Prescriptions for medication (and of course proof of the cost thereof) shall also be of assistance.
Written confirmation of a diagnosis is especially important in the case of psychological conditions such as anxiety. You may of course elaborate on what you are personally experiencing, but without supporting evidence by a psychologist you have no chance of getting any judgment in your favour.
2. Wrongfulness on the part of the employer
Some forms of conduct, such as verbal and physical abuse, are clearly wrongful in any situation and here verbal testimony from just yourself can be sufficient for the court to take into account and even to make a finding in your favour. Having eyewitnesses who are willing to testify shall however always be ideal. Any evidence in the form of documents and recordings that you may have to prove the conduct about which you are complaining should be made available to your attorney right at the very beginning.
There are, however, some forms of conduct that may not appear wrongful to people (like the presiding officer in the Court), but which is known to be wrong by people that are familiar with the specific industry or profession within which you work. In these cases you will need to produce evidence of things such as the standard operating procedures, code of conduct or collective agreement that is in place at your workplace. All of these sets of rules are usually kept in writing by the HR manager at your workplace and should be made available to you on request. If your request for this information is denied the employer can be compelled to make this information available by an order of court.
3. The causal link between the employer's conduct and the damages suffered
It is all good and well that you can prove that you are ill and that things at work are not as they should be, but if the court is not convinced that your ill health is a result of your employer's conduct all your hard work in obtaining the above evidence will be for naught.
Proof that your physical or psychological (especially psychological) ill health was caused by the conduct of your employer can only be accepted from a qualified practitioner in the relevant field of medicine. You will find that it is here where your doctor or psychologist is the least willing to cooperate. These people usually do not want to testify in court. Fortunately- your attorney usually knows of practitioners in the relevant fields of medicine who make the compiling of reports for use in legal proceedings and giving of testimony in court their business.
Attending the necessary interviews and examinations with them may take a lot of time away from work and is likely to cost anything from R 7 000 to R 25 000 to get the full report and testimony, but compared to the years of grief that you are about to spare yourself saving up for this big expense is most likely going to be worth it.
Personally I do not think claims such as these have a big enough guarantee of success for attorneys to undertake them on a contingency basis, but fortunately you will know your chances of success after you have consulted with the relevant experts.
If you get physically injured at your place of work you have recourse with the Workmen's Compensation Commissioner.
What about mental health disorders or stress-related diseases that result from a hostile work environment, though? Are these just things that come with the territory that should be accepted?
It should not be. No matter where you work or what you do- nobody- and I mean NOBODY- has a right to impair your physical or mental health.
What can you do, however, if you find that your work environment gets worse with each passing day and resigning just is not an option for you? The short answer is that the legal remedy with which to stop any continued infringement upon any of your rights is an interdict. The legal remedy with which to claim compensation for damages suffered is action proceedings which most of us know as the common lawsuit.
Both of these remedies require certain facts to be proven, however, and this is mainly what this article is about. How does one go about proving all the facts necessary to successfully finalise legal proceedings against your employer for detriment to your physical or mental health suffered because of the wrongful conduct of your employer?
Well- whether you choose to apply for an interdict or to sue for damages the court will require proof of the following:
1. Proof of the damages
Your word shall not be enough here. Especially with conditions that have only internal symptoms like ulcers you shall need written confirmation by your doctor of his/ her diagnosis. Prescriptions for medication (and of course proof of the cost thereof) shall also be of assistance.
Written confirmation of a diagnosis is especially important in the case of psychological conditions such as anxiety. You may of course elaborate on what you are personally experiencing, but without supporting evidence by a psychologist you have no chance of getting any judgment in your favour.
2. Wrongfulness on the part of the employer
Some forms of conduct, such as verbal and physical abuse, are clearly wrongful in any situation and here verbal testimony from just yourself can be sufficient for the court to take into account and even to make a finding in your favour. Having eyewitnesses who are willing to testify shall however always be ideal. Any evidence in the form of documents and recordings that you may have to prove the conduct about which you are complaining should be made available to your attorney right at the very beginning.
There are, however, some forms of conduct that may not appear wrongful to people (like the presiding officer in the Court), but which is known to be wrong by people that are familiar with the specific industry or profession within which you work. In these cases you will need to produce evidence of things such as the standard operating procedures, code of conduct or collective agreement that is in place at your workplace. All of these sets of rules are usually kept in writing by the HR manager at your workplace and should be made available to you on request. If your request for this information is denied the employer can be compelled to make this information available by an order of court.
3. The causal link between the employer's conduct and the damages suffered
It is all good and well that you can prove that you are ill and that things at work are not as they should be, but if the court is not convinced that your ill health is a result of your employer's conduct all your hard work in obtaining the above evidence will be for naught.
Proof that your physical or psychological (especially psychological) ill health was caused by the conduct of your employer can only be accepted from a qualified practitioner in the relevant field of medicine. You will find that it is here where your doctor or psychologist is the least willing to cooperate. These people usually do not want to testify in court. Fortunately- your attorney usually knows of practitioners in the relevant fields of medicine who make the compiling of reports for use in legal proceedings and giving of testimony in court their business.
Attending the necessary interviews and examinations with them may take a lot of time away from work and is likely to cost anything from R 7 000 to R 25 000 to get the full report and testimony, but compared to the years of grief that you are about to spare yourself saving up for this big expense is most likely going to be worth it.
Personally I do not think claims such as these have a big enough guarantee of success for attorneys to undertake them on a contingency basis, but fortunately you will know your chances of success after you have consulted with the relevant experts.
No comments:
Post a Comment