The Accident Prevention and Workers’ Compensation Scheme is a work based insurance scheme established to provide financial relief to employees and their families in instances where an employee is injured or killed in a work-related accident. The scheme was established as provided for in terms of section 3 of the National Social Security Authority [Chapter 17:04]. The law governing this scheme is Statutory Instrument 68 of 1990-National Social Security Authority (Accident Prevention and Workers’ Compensation Scheme) (Prescribed Matters). From the reading of the Statutory Instrument it is apparent that the scheme is a no fault compensation scheme in that the injured worker does not have to prove any negligence on the part of the employer before he is entitled to compensation. The scheme as a consequence therefore offers short and long term benefits to these employees and their dependants in the form of:

• Short term benefits
• Periodical payments in respect of loss of earnings
• Medical Aid
• Lump Sum
• Funeral Grant

• Long Term
• Worker’s Pension
• Widow/Widower’s Pension
• Dependant Allowances

• Other benefits
• Rehabilitation Benefit
• Constant attendants

THE OBJECTIVE OF THE SCHEME.
The scheme was set up for providing financial relief to workers and their dependants in respect of diseases, injuries or death arising from their employment. It compensates the worker or his dependants if the worker becomes disabled or if the worker dies, pursuant to section 24(1) of the Notice which provide that:

“If an accident to a worker arising out of and in the course of his employment happens after the 1st January, 1960, and results in such worker’s disablement or death, he, or if he dies, his dependants, shall become entitled to compensation in accordance with this Scheme.”

Moreover, the scheme was set up in order to create awareness and promoting safety and health at all places of work. The scheme encourages adoption of the safety and health legislation through factory and machinery inspection which prevents some accidents and injuries that may occur at the workplace.

To add on, the scheme provides rehabilitation services to disabled workers so as to reduce their disablement and return them to their former employment or otherwise prepare them for a useful and meaningful place in society. In instances where a worker is permanently disabled, the scheme provides compensation in the form of a pension to the worker.

CONTRIBUTIONS AND COVERAGE OF THE SCHEME
The scheme is wholly employer funded as provided in section 7A of S.I 68 of 1990 which provides that:

“Subject to this notice, every employer who has a place of business in Zimbabwe shall, within one (1) month of becoming an employer, register and contribute as an employer in terms of this notice.”

All employers except the government as articulated by section 7(2) of S.I 68 of 1990 which provides that: “This Scheme shall not bind the State”, employers of the domestic employees and informal sector employers are required by law to contribute to the scheme. The definition of an employer as provided by section 6(1) of S.I 68 of 1990 is:

“…“employer” means any person or any body of persons, corporate or un-incorporate, having a contract of employment or apprenticeship or learnership with a worker or who employs a worker, and includes any person controlling the business of an employer.”

A reading of the above provision indicates that any person who makes a contract of employment with another person is deemed to be an employer therefore they ought to contribute to the scheme. On the other hand, the government as the employer does not contribute to this scheme because its workers when they are injured or when they die in a work related accident, they are compensated pursuant to another law.

DEFINITION OF A WORKER
The definition of a worker provided by S.I 68 of 1990 raises a number of questions and challenges. Firstly, the definition does not quite specify whether informal sector workers (magaba) are covered by the scheme. According to the Quarterly Informal Economy Survey by World Economics the size of Zimbabwe’s informal economy is estimated to be 64.1% which represents approximately $42 billion at Gross Domestic Product per capita based on purchasing power parity levels which is an indication that the informal sector contributes immensely to the economy. The risks covered by the scheme also apply employees in the informal sector thus there is need for the definition of a worker to be amended so as to include informal sector workers.

Section 4(3) (c) provides that under the scheme the following is not considered to be a worker:

“any outworker, that is to say, any person to whom articles or materials are given out by an employer to be made up, cleaned, washed, ornamented, finished or repaired or adapted for sale on premises not under the control of the employer;”

What comes to light from the reading of the above provision is that a remote worker is not covered by the scheme. The fact that an employee does not necessarily work in the premises which belong to the employer does not remove the risks that come with the work they are doing. Consequently therefore, there is need for the amendment of the definition of the worker so as to include outworkers in the coverage of the scheme.

IS MENTAL HEALTH BASED ILLNESS COVERED BY THE SCHEME?
A reading of S.I 68 of 1990 clearly articulates that the scheme covers injuries, deaths and diseases which happen or are obtained at the workplace. The next question that follows therefore is whether or not mental health based illness falls under diseases. The statutory instrument itself does not define what a disease is and this is problematic. Section 63 as read with Part 1 of the 2^nd Schedule of S.1 68 of 1990 provides 32 scheduled diseases which are covered by the scheme and No.32 states that:

“Any other diseases certified by a medical practitioner as caused by exposure to the risk concerned at work”

The above provision is clear that a disease which is not outlined in the schedule for it to be covered by the scheme ought to be certified by a medical practitioner. Taking into consideration that mental health based illness is not among the 32 outlined diseases the question that arises is whether it can fall under No.32 as long as a medical practitioner certifies the illness. It is difficult to answer that question without the definition of a diseases provided however, one can argue that once a person is declared to have mental illness by a medical practitioner then what follows therefore is that the scheme covers it pursuant to the 32^nd scheduled disease. Either way, what is imperative is for the lawmakers to start by defining what a disease is and if it different from an illness like how they defined “accident” and “disablement” which are the reasons why a worker might need compensation. From the definition, it becomes easy to ascertain whether mental health based illness is covered by the scheme.

THE SCHEME AS A SOURCE OF PENSION
One of the long term benefits of the scheme is a pension. The definition of a pension according to the Notice is:

“‘Pension’ means the monthly payments of compensation referred to in Part V, but does not include any children’s allowance or periodical payments;”

According to Part V of S.I 68 of 1990, the pension is offered to the employee who gets permanent disablement upon getting injured at work or to the dependants of the employee who dies in the course of doing the work he is employed to do. In the first instance, the degree of disablement determines the amount of compensation in the form of pension that the employee will receive pursuant to section 34 of the Notice and also the children of the employee will receive children’s allowance and it is defined as:

“‘children’s allowance’ means the monthly allowance payable in respect of a child or children of a disabled or deceased worker in terms of Part V;”

With regard to the death of an employee, the widow or widower receives the pension and the children of the deceased will receive children allowances as provided in the 4^th schedule of S.I 68 of 1990.

The principle behind the Accident Prevention and Workers’ Compensation Scheme is to ensure financial and rehabilitative assistance to those affected by an accident or injury at work. It is imperative to note that in order to ensure an effective safe working environment, the employer is urged to do its part in terms of taking measures which prevent foreseeable dangers and injuries. What is clear from the above is that the law regulating this scheme needs reform so as to ensure the absolute fulfilment of the objective of the scheme.

For assistance with inquiries on Compensation Schemes  and related issues, kindly get hold of our Estates Planning and Insurance Practice Group on info@mmmlawfirm.co.zw