The definition of an injury suffered in the workplace through the negligence of the workers themselves is still posing a confusing legal point for employers and the Occupational Health and Safety Authority.
The Social Security (amendment) Bill, currently under discussion at committee level, proposes that when injury results from negligence on the part of an employee who disregards safety precautions, workers will be effectively disqualified from any injury benefits as well as injury leave, which constitute a maximum of 12 months.
Employers’ associations such as the Federation of Industry (FOI) and the Chamber of Commerce reacted nervously when the Bill was first published, after assuming that employees would still be entitled to injury leave despite having been refused injury benefit by the Department of Social Security (DSS).
The DSS reacted by ascertaining that once injury benefits would have been disqualified in such instances, the claim for injury benefit would not be considered as an “injury at work” and such workers would therefore only be eligible for sickness leave.
The Social Security amendment is seeking to ensure that both employers and employees follow health and safety regulations and procedures by disqualifying workers from injury benefits is they disregard health and safety regulations. Over the years, the DSS has received numerous complaints by employers alleging that injury benefit had been awarded indiscriminately and to negligent employees, despite evidence proving that employers had taken all health and safety measures as required by law.
Occupational Health and Safety Authority chairperson Dr Joanna Drake has, however, told our sister paper The Malta Financial and Business Times this week that more discussion is needed on certain aspects of the bill, warning that it is not easy to draw the line on injuries assumed to have been brought about through workers’ negligence.
“It is not yet clear for us on how the procedure to determine how any injury occurred will be established, and how the worker would be seen as having been negligent or not in incurring an injury on the workplace. The principle of having the employer bear the onus of health and safety requirements of workers should remain in place. In practice, this amendment serves as a deterrent for workers to undertake their full responsibilities to adhere to health and safety requirements.
“However, we are still awaiting discussions on this point. Of course there are cases in which workers have been proven to be negligent in incurring injuries on the workplace, but we do not know what kind of procedure will be established to determine such cases. We need to discuss this amendment more because it is part of the bigger picture of this economy, in which health and safety has to be instilled as a culture,” Drake explained.
Employers’ associations have also been left in the dark about how such procedures will take place. Drake said that she would favour having a system in which both OHSA and the DSS can consult in the first instance over such disputed injuries.
FOI director-general Edwin Calleja said the federation is still uncertain about the procedure which will be used to determine such injuries. “We are rather concerned about this matter since we would not like to see a lengthy and bureaucratic system being employed in such cases.
“Injured workers are presumed ‘innocent’ until a clear decision is taken on these matters, and that means that employers will have to pay injury benefit over and above their monthly wage, until the worker would have been deemed to have been injured through their own negligence. We are expecting clarification on how a swift appraisal of certain injuries borne by workers can be defined as having been brought on by their own negligence.”