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Senior Lecturer, School of Law, University of the Witwatersrand, South Africa.
Abstract
This article emphasises the uncertainty in the relationship between a student undergoing practical training and his/her lecturer or university, if the student should be injured and wants to claim compensation.
One must first establish whether the student can be described as an employee of the lecturer or university, or as a vocational worker or independent contractor. Once the status of the student has been established, the relevant legislation can be determined, whether it is the Labour Relations Act or the Basic Conditions of Employment.
It is, however, not that simple and a person in the capacity of a student does not accord with the definition of an employee or an independent contractor or a vocational worker. One will have to rely on the assumption in section 83A in the Basic Conditions of Employment that a student is an employee when he does practical training for the benefit of the university.
The Occupational Health and Safety Act requires employers to assure that the workplace is a safe environment for employees, with the minimum risks involved. The Compensation for Occupational Injuries and Diseases Act makes it possible for an employee to claim compensation when such a risk becomes a reality.
This article also tries to compare the situation of a student sports person injured while participating in university sports, and a drama student injured during a performance or rehearsal of a play. It is stated that the relationship between the drama student and lecturer is similar to the relationship between a sports person and his/her coach, but the relationship differs in that a sports person’s risk of getting hurt is much greater than that of a drama student, The contracts between sports players and their authorities are also stipulated in much more detail than the contracts (if any) between the drama students and the university.
It is concluded that the legislation is not clear on the specific matters where a student undergoes practical training while they are still studying. The suggestion is that a sectoral determination must be put in place to regulate the relationship, the remuneration, the working hours and the working conditions and risks involved.
