Domestic workers: what you don’t know about the law

She looks after your children, cleans your house, cooks your food, co-ordinates your household, and sometimes lives on your property. Yet, are you aware of your domestic worker’s legal rights?

“In many ways, domestic workers are an intimate part of our lives,” said Dawn Norton in a presentation, “Domestic workers and the changing legal landscape” delivered to the Union of Jewish Women in Glenhazel this week. Norton is the director of employment law at Mkhabela Huntley Attorneys.

Considering the fact that there are about 900 000 domestic workers in South Africa, most of whom are African women, they are a significant category of employee. However, domestic workers are generally not unionised, and there’s not much information about them in the public arena. “They are vulnerable and exploited,” said Norton.

There are, however, minimum legal entitlements for domestic workers which afford them a certain level of protection. Yet, the minimum wage for domestic workers is R23,19 an hour – a figure that’s adjusted over time – which means adhering to the minimum requirements isn’t nearly enough.

Norton laid out the regulations regarding hours of work and pay:

• Domestic workers may be required to work a maximum of 45 hours a week;
• An additional 10 hours of overtime is permitted. This is charged at one and a half times the hourly rate. Alternatively, the regular hourly rate is paid plus 30 minutes off per extra hour worked;
• A “stand-by allowance” is when the domestic worker, while in her room, is on call from 18:00 to 06:00. This can happen only up to five times a month. Here, workers are entitled to R30 a shift whether or not they’re called out. If they’re called out, this is considered overtime, so they receive one and half times pay;
• After working for five hours solid, the employee is entitled to a one-hour lunch break; and
• Double pay is required for work on Sundays or public holidays.

Domestic workers are also entitled to three weeks of paid annual leave, which must be taken within six months of the end of a cycle. So, explained Norton, should a domestic worker start in January 2022, and a leave cycle goes to December 2022, then by June 2023, she must have taken her three weeks’ annual leave. If an agreement around dates cannot be reached, the employer has the final say. “For those who have worked less than a year, leave is calculated at one day paid annual leave per 17 days worked.”

Six weeks of paid sick leave in a three-year period which equates to two weeks a year is required. Domestic workers are also entitled to family responsibility leave for the illness or death of a parent, child, or partner.

“If workers are employed for more than four days a week for longer than four months, they are entitled to five days’ paid family responsibility leave,” said Norton. “The employer is allowed to ask for reasonable proof of illness or death.

Domestic workers are also entitled to four months’ unpaid maternity leave, and they may claim compensation from the UIF. “There’s no entitlement from the employer to pay for maternity leave, they just have to give the time off and keep the domestic worker’s job open for this period,” said Norton. Provision is also made for miscarriage, where the worker is entitled to six weeks’ unpaid leave.

If someone is working for more than 24 hours a month for you, there needs to be a written contract of employment in place. “However,” said Norton, “if there’s no written contract, it doesn’t mean that there’s no contract, there is still a verbal contract in place.”

In the case of retrenchment, there needs to be a paid notice period of four weeks for any worker who has been employed for six months or more. Severance pay is made up of one week’s pay for every year of completed service. Workers are also entitled to one month of notice pay and any outstanding accumulated leave must be paid out.

Whether it be about substantial breakages, theft concerns, or extended leave without notice, the employer is entitled to dismiss their domestic worker should issues of misconduct arise. “You don’t need a fully-fledged hearing, but you must make the allegation of misconduct known to the employee and, importantly, provide an opportunity for their response,” said Norton. “To dismiss your employee, the nature of the misconduct must warrant the termination.”

You don’t need to pay notice in this case, but any outstanding leave must be paid out. If, like many, you’re concerned about being taken to the CCMA, take comfort. “Provided you have been fair and the nature of the misconduct is serious, you shouldn’t have a problem,” said Norton.

Finally, it’s important to keep abreast of new legal developments. COIDA (the Compensation for Occupational Injuries and Death Act) said Kyle Bentley, a candidate attorney at Mkhabela Huntley Attorneys, was applied to domestics in 2021. “If a domestic worker gets injured, ill, or dies in execution of their work duties, they or their dependants – if the worker is the breadwinner – are entitled to compensation.”

Employers are required to pay this compensation annually for any domestic worker who works in their home for more than 24 hours a month. Register your domestic for COIDA via the government website – where you’ll search for government gazette #44250, said Bentley. This compensation must be paid, regardless of whether or not a domestic employee submits a claim.

What’s more, the law has a retrospective effect. Domestic workers who suffered injury, disease, or death due to work are entitled to compensation dating back to 27 April 1994. They or their dependants can now lodge a claim for past work-related injuries or death. “Yet, if you register your employee with COIDA, the responsibility shifts to the compensation fund rather than the individual employer,” said Norton.