Employer refuses to report death to WCA
Our brother was employed as a truck driver and while in the course of his employment, he was involved in an accident which claimed his life. We reported the accident and his death to his employer for the employer to notify the Workers Compensation Fund (WCF) to process payment of benefits due to the deceased’s dependents. However, the employer of my deceased brother refused to report the accident and death of our brother to WCF on two grounds. First, they said that the dependents of the deceased are not entitled to any benefit because the traffic police investigation report of the accident shows that the accident which claimed the life of the deceased was attributed to the drunkenness of the deceased, in that the deceased was driving under the influence of alcohol at the time of accident. Secondly, the employer said that the employer has also suffered a big loss of property due to the accident caused by the deceased’s drunkenness and had he survived the accident, he would have been prosecuted. The employer also claimed that where an employee dies due to misconduct such as drunkenness, he or his dependents are not entitled to benefits under the Workers Compensation Scheme. Are these points raised by the employer legally tenable? What can we do to get compensation?
Section 19(2) of the Workers’ Compensation Act [Cap.263 R.E 2015] lays down a general rule that where an accident is attributed to the willful misconduct of an employee, such employee is not entitled to compensation under the Workers’ Compensation Scheme. However, section 19(2) of the Workers Compensation Act provides exceptions to the general rule that despite the willful misconduct of the employee which is the root cause of the accident, compensation is still payable to such employee or his dependents if the accident resulted into the permanent disability or death of the employee. Although driving under influence of alcohol is a road traffic offence under the Road Traffic Act and a misconduct for a driver, where a driver dies or suffers permanent disability resulting from driving under influence of alcohol, such misconduct alone does not disentitle the driver or his dependents from getting benefits offered by the WCF. In a case of death the main test which WCF uses to determine if benefits are payable is whether the accident occurred when the employee was acting in the course of discharging his actual contractual duties. The manner of discharging contractual duties is not material in determination of benefits accruing from death or permanent disablement of an employee. Hence the employer is not right in its opinion that the dependents of the deceased driver are not entitled to compensation offered by WCF simply because the accident which caused the driver’s death was attributed to the driver’s drunkenness. Drunkenness would have disentitled the driver from getting benefits payable by WCF only if he would have sustained normal injuries but survived.
Employer’s refusal to report the accident and death of the employee to WCF is actually an offence under section 34(3) of the Workers Compensation Act. It is not the duty of the employer to decide whether the employee or his dependent is entitled to compensation paid by the Fund or not. The determination of the compensation is done by WCF and not the employer. The employer’s statutory duty is only to report the accident and/or death to WCF within 7 days after they become aware of it.
Section 33(1) of the Workers’ Compensation Act allows the dependent or any person acting on behalf of the employee to report the accident directly to the Director General of the WCF. Therefore you can report the accident and death directly to WCF without necessarily going through the employer of the deceased.
Corrupt witness lying in Tribunal
I have a land case in the District Land and Housing Tribunal in which I am the respondent and have been defending the case myself. In the course of hearing, the claimant called a witness who is a total stranger to me and not even one of my neighbors. The witness lied in the Tribunal by stating that he witnessed me selling the disputed plot to the claimant because at the time of sale of the land to the claimant he was a cell leader of our area. I have discovered after his testimony that the claimant’s witness was paid TZS 1,000,000 by the claimant to tell lies and misguide the Tribunal. The case is coming for hearing soon when I will be giving my defence. What can I do to have the lie and corrupt evidence of the claimant’s witness expunged from the Tribunal record?
The credibility of the witness who lied to the Tribunal can be impeached under section 164(1)(b) of the Evidence Act [Cap.6 R.E 2019] by calling, as your witness, a person who saw the witness being bribed by the claimant for him to tell lies. Your witness will be required to prove that the claimant’s witness was bribed and all what he said was a lie. If the Tribunal will be satisfied that the witness received a bribe to tell lies, it shall accord no weight to such evidence but it will not expunge the evidence from the Tribunal’s record. The Tribunal cannot expunge the evidence it recorded on account of the fact that the evidence was given by a dishonest or corrupt witness. Corruption affects only the evidential weight to be accorded to the testimony of the witness and not the admissibility of such evidence. You can thus take your witness to the Tribunal during the next session for him to prove that the claimant’s witness was bribed and he lied to the Tribunal.