The Basic Conditions of Employment Act defines a “domestic worker” as any employee who performs domestic work in the home of their employer. This includes gardeners, but specifically excludes farmworkers.

In terms of the Compensation for Occupational Injuries and Diseases Act (COIDA), all employers must register their employees with the Compensation Fund, but prior to 10 March 2021, domestics workers were specifically excluded from the definition of an “employee” in the Act. Employees who are injured or fall ill at work can claim compensation from the Compensation Fund. This includes temporary and permanent disability, medical and funeral expenses, as well as compensation for surviving spouses and children.

In the ground-breaking 2020 case of Mahlangu and Another v Minister of Labour and Others, the Constitutional Court declared the definition of an “employee” in COIDA unconstitutional in so far as it excluded domestic workers. Domestic workers are now afforded compensation under COIDA, which is in line with their constitutional right to equal access to social security as provided for in Section 27(1)(c) and 2 of the Constitution.

Any person who employs a domestic worker is therefore deemed to be an employer and is obliged to register their domestic workers with the Compensation Fund by paying an annual fee on their behalf. Employers who fail to do so are guilty of an offence and liable to a fine, and should a domestic worker who is not registered with the Compensation Fund be injured on duty, such domestic worker can also institute civil proceedings against their employer.

The annual fee payable by an employer is calculated as follows: The domestic worker’s annual salary ÷ 100 × 1.04. An employer whose domestic worker earns R60 000 annually must therefore pay an annual fee of R624 to the Compensation Fund.

It is essential for employers to register their domestic workers with the Compensation Fund, to indemnify themselves from civil litigation. The failure to register with the Compensation Fund may open an employer up to costly and time-consuming litigation.

Article by: Etienne Fourie
Dispute Resolution Official – East London