A recent ruling by the Constitutional Court has expanded on the rights of domestic workers in South Africa, which could be life-changing for the employees and their dependants. The Court confirmed that domestic workers who suffer injury, become disabled or contract a disease while on duty at the private home or premises of their employer may apply for compensation. “Domestic workers are the unsung heroines in this country and globally,” said Acting Judge Margaret Victor. “Sadly, domestic work as a profession is undervalued and unrecognised, even though they play a central role in our society.”

To be more specific, this means that domestic workers are now included in the Compensation for Occupational Injuries and Diseases Act (COIDA), and employers will have to register with the Compensation Commissioner (we’ll unpack this later in the feature).

The ruling comes after a daughter of a domestic worker approached the Department of Labour to find out if she can get compensation for the death of her mother, who was a domestic worker and tragically drowned in her employers’ swimming pool. 

The Department of Labour then told the daughter that her mother, under COIDA, isn’t considered an “employee” and cannot claim for compensation or unemployment insurance benefits. This prompted The Socio-Economic Rights Institute of South Africa (SERI) to take the case to court on the behalf of the family, and they were ultimately successful. 

What does the Constitutional Court ruling mean for the dependants of domestic workers in South Africa?

The Court included dependants in its ruling and reinforced the fact that they will also be able to claim from the Compensation Fund. This kind of financial relief will be crucial to the lives of those who relied on a domestic worker’s income to live.

Another important aspect to take note of is the fact that an application for compensation can be made retrospectively. This means domestic workers or their dependants can lodge claims and seek relief for work-related injuries or death dating back 27 April 1994.

However, the Department of Labour and the Compensation Commissioner are expected to release more information on exactly how these retrospective applications will work.

How employers of domestic workers can ensure they are on the right side of the law.

Employers, of course, have to play their part in ensuring the rights of domestic workers are upheld. Not to mention, failure to do so could result in legal consequences.

Anyone who employs one or more domestic workers must:

  • Register with the Compensation Fund. This can be done by completing a W.as.2 form, which can be found on the Department of Labour’s website or at its offices. The completed form accompanied with a copy of the employer’s ID must be mailed or delivered to the Compensation Commissioner’s office.
  • Wait to be allocated a Compensation Fund registration number.
  • Submit A Return of Earnings (W.as.8) form. This document seeks to assess the employer’s salary and any potential work-related risks, and must be sent in annually. This will help determine the assessment tariff, which is effectively the amount of money to be paid into the Compensation Fund each month.
  • Pay an annual assessment fee.  This is calculated at total worker’s pay divided by 100 and then multiplied by the assessment tariff.
  • NOT deduct any of their domestic workers’ earnings as a contribution to the Compensation Fund.

How can Compensation Fund claims for domestic workers be submitted?

An employer, employee or an employee’s dependant must submit a compensation claim within 12 months after the injury, illness or death occurred. Claims can be made for medical costs, temporary or permanent disability, and death benefits. There are two important documents that need to be sent to the Compensation Commissioner within this  timeframe: A Notice of Accident and Claim for Compensation form and an Employer’s Report of Accident Form. If the claim is for an injury or illness, a doctor will be asked to complete and submit a Medical Report in Respect of an Accident.

How do the compensation claim payouts work for domestic workers?

The employee or dependant will be sent the determined compensation amount directly from the Compensation Commissioner. However, in the event of an injury, the employer will legally have to pay for the first three months of compensation for the domestic worker.  The employer will then be reimbursed by the Commissioner. 

What happens if an employer doesn’t register for the Compensation Fund?

Because this is required by law, there will be legal consequences for failing to register with the Compensation Fund. What’s more, there will be penalties for failing to pay the annual assessment fee, too. Failure to register or pay could result in paying a fine or being prosecuted for an incident at work that leads to a domestic worker being injured or killed.

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