WORK INJURY BENEFITS BY Justus B. Nyakego

INTRODUCTION Like all other Acts of parliament Work Injury Benefits Act, 2007 (WIBA, 2007) is subordinate to The Constitution of Kenya, 2010. Enacted in 2007, WIBA,2007 is still effective by virtue of section 7 of the 6th Schedule of the Constitution. Article 41 of the Constitution gives right to every individual to entitlement of reasonable working conditions. One of the work conditions is compensation of injuries sustained at work by workers.

WIBA, 2007 provides for compensation of injuries sustained at work WIBA, 2007 provides for compensation of injuries sustained at work. A number of sections in WIBA, 2007 were however nullified by high court in petition No. 185 of 2008 by LSK and to this date the sections remain unconstitutional. The sections include:- - 4, 7(1) and (4), 10(4), 16, 23(1), 25(1) and (3), 52(1) and (2), 58(2)

WORK INJURY BENEFITS ACT, 2007 This Act is applicable to all employees except the armed forces (the army, air force and navy). For the purpose of the Act, the following persons are not regarded as employees:- Casual employee not employed for the employer’s trade or business. An employee deployed outside Kenya for a continuous period of 12 or more months. A dependant – Any person who at the time of the accident is dependent upon the employee for necessaries of life.

Employer’s Obligations Register with the Directorate of Occupational Safety and Health Services Repair, maintain and replace when necessary appliances for use of victim due to the condition inflicted by the accident Furnish the Director with particulars of the business. Keep a register for at least 6 years of earning and other employee records and produce it to the Director when required. Send notice of occurrence of an accident to the Director

Convey the accident victim to and from hospital Provide first aid to the injured person Defray any expenses reasonably incurred by an employee as the result of an accident arising out of and in the course of employment Pay compensation to an employee injured while at work. Pay reasonable funeral expenses of a deceased employee.

Right of compensation An employee who is involved in an accident resulting in disablement or death is subject and entitled to compensation. An employee on his/her way to/from place of work by means of transport provided by the employer is entitled to compensation if injured in the process. An employee temporarily deployed outside Kenya for a period of 12 or less months and injured during that deployment has right of compensation. An employee injured while undertaking training for performance of emergency services

Not Eligible for Compensation misconduct and if the accident is not serious. NB. An accident is deemed serious if the degree of disablement is 40% or more. An employee who willingly presents false information about the injury is not entitled to compensation An employee whose disablement or death was caused or prolonged by deliberate refusal or willful neglect of employee to submit to medical aid. If an accident is not reported within 12 months, then the benefits are lost.

An employee sustaining injuries in circumstances under another party other than the employer may claim compensation in respect of the accident or disease from the third party. Nobody is allowed to compel or influence an employee resulting in or directed at deprivation of the employee’s right of compensation. Compensation should not be alienated in any way by:- Assigning or pledging Attaching Setting off any debt entitled to compensation. Compensation is not to form part of the employee’s estate.

Reporting of Accidents To the employer by the employee or on behalf of the employee immediately upon occurrence of the accident. To the Director by the employer Within 24 hours if fatal Within 7 days if non-fatal The employee may also report the accident to the Director directly.

The Director May make inquiry into the occurrence of the accident May cause medical examination to be carried out on the claimant May require production of medical report by the employer for the purpose of the claim May lodge a claim of compensation within 12 months after the date of the accident on behalf of the injured or 12 months after the death of an accident victim if the accident was not reported to the Director. May convey the compensation funds to the claimant within 30 days from the date of remittance by employer/insurer.

The injured person just like any other person is has a right to fair administrative action pursuant to article 47 of the Constitution. The Director of Occupational Safety and Health services has a duty of administering WIBA, 2007. Being a public servant, he is bound by article 232 of the Constitution to uphold values and principles of public service bearing in mind provisions of article 47 in the discharge of duties outlined in WIBA, 2007. It follows for other public servants e.g. the Director of WIBA, 2007 and implied officers working under the 2 Directors in the Act’s spirit.

Compensation An accident disabling a worker for 3 or more days should be compensated with periodical payment equivalent to employees’ earnings but not for a period of exceeding 12 months. Compensation expires upon termination of disablement or if the employee resumes work of greater earnings Permanent disablement = Monthly salary x percentage of incapacity x 96 months Percentage of incapacity may be determined by the doctor attending to the injured. Earning in respect of temporary incapacity will be equivalent to the periodical earnings while away if the accident victim was not paid while away.

Occupational Diseases These are diseases arising from the work conditions where the employee was engaged. On the event of occurrence of an occupational disease, an employee is entitled to compensation whereby the percentage of incapacity is determined by the doctor.   Appeals Any person aggrieved by the decision of the Director is to lodge an objection to the Director within 60 days of such decision. The Director is to reply within 14 days. If not satisfied by the reply, the objector to appeal to the industrial court.

Functions of the Director of WIBA Register employers Supervise implementation of WIBA Ensure all employers insure their employees Receive reports of accidents and carry out investigations Ensure compensation of the injured General Penalty 200,000/= fine or a jail term not exceeding 12 months or both

It is not explicit as to whom delegated prosecutorial powers are vested in WIBA, 2007. Contravention of provisions of WIBA, 2007 is criminal and there provisions of Criminal Procedure Code Cap. 75 and the Evidence Act Cap.80 come into play during prosecution. Article 157 of the Constitution establishes the office Director of Public Prosecutions (DPP) in whom powers of prosecution of all criminal cases are vested. Courts before whom WIBA, 2007 cases are brought have judicial authority as provided for in article 159 The state has a duty to ensure access to justice by any person aggrieved in matters relating to compensation in line the requirement of article 48.

Persons coming within purview of action under the provisions of the WIBA, 2007 have rights as enshrined in articles 49, 50 and 51 of the constitution. In conclusion WIBA, 2007 is compliant to the Constitution of Kenya, 2010 by being explicitly in line with the following articles and section of Schedules:- articles 41, 47, 48, 49, 50, 51, 157, 159, 232 and section 7 of the 6th Schedule.

THE END. THANKS FOR KEEN ATTENTION