The Basic Conditions of Employment Act applies to domestic workers too, writes Belinda Beresford
Labour relations, like charity, begin at home. But unlike charitable acts, proper labour relations towards your maid, gardener, chauffeur or childminder are not voluntary.
Before crime and emigration became the main topics of conversation among the chattering classes, complaining about domestic workers was a traditional dinner-table subject. But the days of being able to dismiss your maid or gardener offhand are gone with the advent of new labour legislation.
Domestic workers are now entitled to paid holidays, sick leave, maternity leave and have rights to be protected when they are dismissed.
Breaching the new labour laws can have a heavy financial penalty. Perfunctory dismissal could render you liable to pay your dismissed employee up to 24 months’ salary.
The relationship between domestic workers and employers can be intensely personal. After all, you often share the same living space. But this hasn’t stopped employers exploiting their workers, and the intensity of the relationship can make disputes more adversarial.
Complaints brought by domestic workers are one of the biggest areas of disputes brought to the Council for Conciliation, Mediation and Arbitration (CCMA). Roughly 6% of the organisation’s caseload is due to disputes between domestic workers and their employers. But the CCMA says cases involving domestic workers have a lower settlement rate: only about 55% of such disputes are settled in conciliation, compared to an average of about 65% to 70% for all CCMA cases.
One labour negotiator says this could be because domestic workers are being given legal protection for the first time. Employers may therefore treat disputes more casually – while their employees may have the desire to wield their new-found rights.
But while it’s easy for employers to fear the Act, by following procedure and understanding the law you can reduce your liabilities.
Domestic workers are defined as anyone employed by the household, such as a maid, gardener or person who looks after children or an elderly or disabled person. Your legal responsibilities towards your domestic workers depend on the number of hours they work. If it’s fewer than 24 hours a month – or less than a day a week – they have very few rights. Domestic workers who work more than 24 hours a week are entitled to most rights given under the Basic Conditions of Employment Act.
Perhaps the most important thing to sort out is an employment contract. Legally you have to give a domestic employee a “written particulars of employment” document. From the beginning of December this year employers must provide this written contract, and keep a copy of it until three years after the employee has left their service.
Legislation for domestic workers differs from that of other employees. For example, if someone has been working for you for less than a month, both sides need to give one week’s notice of quitting. But if it’s less than a year, domestic workers must receive four weeks notice, while other employees usually get only two weeks.
A domestic worker is entitled to three weeks’ paid leave a year, pro rata for the time worked. Two weeks of this is non-negotiable – in other words, it cannot be bartered away in return for extra privileges or pay.
Domestic employees are also entitled to overtime pay of time-and-a-half and working on Sundays or public holidays requires double pay. This provision can be altered by mutual agreement.
If you and your maid agree that a normal working week includes Sundays, then she would not be entitled to extra pay. But if you ask her to work Sunday as extra time, she has to receive double pay. You would also owe her a full day’s pay, even if you only asked her to work part of the day. By mutual agreement, you can give paid time off equivalent to the extra time worked.
Domestic workers have a 45 hours working week limit , unless you both agree otherwise. So if your childminder agrees to work for 50 hours a week, that is acceptable – as long as you pay overtime for the extra five hours. Usually the overtime payment would be included in the monthly wage you would both agree to.
Under the legislation domestic workers are entitled to six weeks sick leave for every 36-month “sick-leave cycle”, or roughly two weeks a year.
Female workers are also entitled to four consecutive months unpaid maternity leave. While she is pregnant, you cannot ask a domestic worker to do anything hazardous to mother or child, nor can she work within six weeks of her due date without a midwife or medical practitioner certifying she is fit to do so.
If a domestic worker has been employed for at least four days a week for at least a month, she or he is entitled to three days’ paid leave for family responsibilities. The Basic Conditions of Employment Act specifies what constitutes a valid reason, such as the sickness of a child or the death of a spouse or life partner.
Of the CCMA’s disputes involving domestic workers, more than 70% are related to dismissals. One labour expert says that most employers go wrong by ignoring the procedures they are legally obliged to follow. Even if there is a valid reason for dismissing a domestic worker, ignoring the correct procedure can mean you end up paying compensation.
Under the Labour Relations Act, an “automatically unfair” dismissal – gratuitously sacking someone for no valid reason – makes you liable for up two years’ salary as compensation.
The most broad categories for dismissal are misconduct, incapacity and “operational requirements”. This would include for example if you could no longer afford a chauffeur. A dismissal for operational requirements is basically a retrenchment, and you are required to give severance to the tune of one week for each year of continuous service.
However, before dismissing someone, you have to consult with the affected employee and try to implement appropriate measures to avoid dismissal or minimise distress. These could, for example, include giving training or time off to help the worker find another job.
You are also obliged to disclose all reasons, relevant information and alternatives to your employee in writing and to consult with them about the situation. A domestic worker may be willing to accept lower pay in return for keeping a job. If no alternative can be worked out, you both have to agree on retrenchment pay.
Of course there is a catch: even if you obediently follow all the required procedures, you could still be pulled before the CCMA if your employee questions a dismissal. But your case would be much clearer if you have fulfilled all your legal obligations – in writing, and kept a copy.
Depending on the circumstances, disputes either go to arbitration or to the labour court. Cases involving unfair labour practices, operational requirements and strike-related situations would generally go to the labour court, while misconduct and incapacity would go to arbitration.
This story gives very broad guidelines on the legal position between domestic workers and employers. Consult a lawyer or legal organisation for precise details for each situation