DO YOU KNOW YOUR DOMESTIC WORKER’S RIGHTS?

The Department of Labour, in terms of The Basic Conditions of Employment Act 75 of 1997, provides an outline of domestic workers’ rights. Here are some important factors to keep in mind when employing a domestic worker in your home

HOURS OF WORK

• A domestic worker may work a maximum of 45 hours per week, which can be 9 hours per day for a 5-day work week or 8 hours per day for a work week of more than 5 days;
• Overtime must be agreed to and cannot be more than 15 hours per week, or 12 hours work on any given day;
• Overtime must be compensated at one and a half times the normal wage.

Night work

Night work is work between 18:00 and 06:00. This can only be required if:

• Agreed to in writing;
• The domestic worker is compensated with an agreed allowance;
• The domestic worker resides on the premises or transport is readily available.

Work on Sundays

Work on a Sunday must be compensated at double the normal daily/hourly wage, unless a Sunday includes the domestic worker’s agreed ordinary hours of work, which is compensated at one and a half times the normal wage.

WAGES

Domestic workers are entitled to at least the prescribed minimum wage. If you find that you are paying way more than the prescribed minimum, do not unilaterally lower your domestic worker’s wage, as this would be an automatically unfair business practice. Below is an outline of the current minimum wage payable for the period 1 December 2014 to 30 November 2015:

Some unfamiliar provisions

• A domestic worker who works less than four hours a day must be paid for the hours worked on that day;
• A domestic worker is entitled to a payslip on every payday, which can be daily, weekly or monthly;
• You cannot deduct payment from a domestic worker’s wage in respect of the supply of work clothing or food supplied;
• A deduction of not more than 10% is allowed for accommodation supplied to the domestic worker;
• An employer is obliged to supply the domestic worker with particulars of employment, in other words an employment contract.

TYPES OF LEAVE

Annual Leave

An employer must grant a domestic worker 3 weeks annual leave for every 12 months of employment, which amounts to 1 day for every 17 days worked. An employer may not pay the domestic worker instead of granting leave, except on termination of employment. Leave pay must be paid before the beginning of the leave period.

Sick Leave

• Over a 36 month cycle, a domestic worker is entitled to sick leave equal to the number of work days in a 6 week period;
• An employer may require a medical certificate before paying a domestic worker if he/she is absent for more than 2 consecutive days or absent on more than 2 occasions in an 8 week period;
• An employer must first provide reasonable assistance to a domestic worker residing on the premises, for whom it is not reasonably possible to do so, to obtain a medical certificate before electing to withhold payment for sick days taken.

Maternity Leave

A domestic worker is entitled to 4 consecutive month’s maternity leave. As with any other form of employment, the dismissal of a domestic worker on account of pregnancy, or any reason related to pregnancy, is automatically unfair. Payment for this period is at the employer’s discresion.

TERMINATION OF EMPLOYMENT

The employment contract may be terminated by either party on notice as follows:

• One weeks’ notice if the domestic worker has been employed for 6 months or less;
• 4 weeks’ notice if the domestic worker has been employed for more than 6 months;
• If the employer retrenches the domestic worker, he/she is entitled to severance pay equal to one weeks’ full pay for each year of continuous service.

Ceritificate of service

Upon termination of employment, a domestic worker is entitled to a certificate of service setting out, amongst other things:

• Job title;
• Period of employment;
• Relevant training received;
• Reason for the termination, but only on request of the domestic worker.

– By Michelle Taljaard, Candidate Attorney, MHI Attorneys

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.