Domestic Workers – South African Law

Domestic workers being acknowledged in the ambit of South African law which provides for their health and safety in workplaces.

Are you Aware of Potential Liability that you Face as an Employer?

Domestic workers being acknowledged in the ambit of South African law which provides for their health and safety in workplaces, as stipulated in the bill of rights of the constitution Section 24.
Considering the fact that they are exposed to hazardous substances such as bleach and window cleaners, sharp objects (washing dishes and cleaning), dusty environments (Vacuuming carpets), exposure to health stressors such as noise, vibration and awkward posture, movements, repetitive tasks and now COVID-19 at private households it just makes sense to also include them into the ambit to claim for occupational injuries, death or disease that occurred within their scope of duties.

Now you may reason, but what does this have to do with me? I have a contract and my domestic worker can claim from UIF. In reality, UIF doesn’t cover occupational injuries, death or diseases thus they were always at the backfoot when it came to claiming compensation. Numerous CCMA cases resulted in the employer having to pay for injuries and when not successful the domestic workers instituted civil lawsuits against their employer. This can be very costly for a family to deal with as well as traumatic and bad for the trust relationship between you and your employees.

Having a domestic worker in your household ultimately means that he/she is an employee that performs work under the general supervision of the employer, which is basically the person they have engaged in a contract with.  According to the Occupational Health and Safety Act, 85 of 1993 (OHSA), the definition of an employer is: “any person who employs or provides work for any person and remunerates that person or expressly or tacitly undertakes to remunerate him”. The domestic worker is employed and remunerated in terms of the actual contract conditions. This makes you, the employer in terms of the OHSA. 

The domestic worker is regarded as an employee in terms of the OHSA as stated: “any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of any employer or any other person”. The domestic worker works under the direction or supervision of you (the employer) and receives a salary (remuneration) thus making them your employee.

Now that we have established the applicability of the OHSA the question might arise as to whether you can suffer any criminal or civil liability as an employer. The answer to this is yes. Imprisonment of up to two years or a fine that could easily mount to R100 000 or both in the case where the domestic worker suffered a fatal injury. 

How can I ensure that I comply with the conditions of the OHSA?

The OHSA Section 8, places a duty on the employer to provide a safe and healthy working environment for all employees as far as reasonably practical. To achieve this the employer must ensure that:

• Risk assessments are performed.
• Training on all hazards the employee is exposed to and frequent communication is established.
• Adequate supervision is provided.
• Safe systems of work are established for all tasks performed.
• Continual revision and enforcing of the rules laid down by the employer. 

*  We provide the most effective solution in just one click of a button to download comprehensive pre-designed packages to assist you as the employer to comply.

Injury On Duty Claims

The highest court in the Republic of South Africa, the constitutional court recently confirmed that domestic workers should be covered by the compensation for occupational injuries and diseases Act (COIDA). This follows from a series of cases where domestic workers got injured in private households and having limited recourse to be compensated for their medical bills and transport costs to get medical attention etc. The COIDA allows domestic employees to now claim for injuries, disabilities and illnesses acquired in the scope of their work. This is something that previously specifically excluded this sector.

Now all employers of domestic workers (as well as gardeners) whether part-time, casual, temporary or full time must ensure that they register their employees with the compensation commissioner.

What sort of cover does this offer your employee?

In the event that they fall ill or suffer an injury as a direct result of their employment, they will be able to claim compensation for temporary or permanent disability, assistance with medical bills as well as rehabilitation services. In the vent of their death, their direct dependents can claim compensation from the fund for funeral costs, ongoing support of a widow/ widower’s pension or lump sum, a child pension or additional dependency award cover parents, siblings and other family members who may have been dependant on the employee.

When to register?

Going forwards- within 7 days of signing an employment contract with a new employee. Existing employees should be registered as soon as possible. No deadline established yet, but employers are being encouraged to register asap. It is likely that the deadline might be at the end of March 2022.

Failure to register the employee (once gazetted) could result in penalties and fines imposed by the Department of Employment and labour.

More information on this subject can be found on the government website: http://www.gpwonline.co.za/Pages/default.aspx- Search for Government Gazette number 44250 or 10 March 2021.

How much does compensation cost?

The levy can be calculated by using the following formula:

Annual earnings of the employee / 100 x assessed risk rate (domestic workers class M, subclass 2500) with risk assessment rate 1.04 = annual assessment payable

Example:

Domestic/ gardener earning R5000 p/month = R60 000 per year.

R60 000/ 100 x 1.04 = R624 per assessment year.

Once the amount due has been calculated an invoice will be e-mailed by the compensation fund. This invoice must be settled within 30 days, otherwise, penalties kick in. 

Some keynotes:

• Whether the employee is working fewer hours per week, how you pay them, or what kind of contract you have doesn’t relieve the onus on the employer ensuring that they are registered.
• You may not deduct this fee from the employee’s earnings.
• Even if the employees work at multiple employers- each of those employers will need to register them
• The account is payable once a year and not monthly like UIF