Domestic workers did not, until recently, receive the benefits and protection of statutory law.
Source – You and your rights
Help in the home
Domestic workers did not, until recently, receive the benefits and protection of statutory law. Legislation governing the wages and working conditions of people in industry and commerce did not apply to domestic workers, whose only rights were those that applied under common law.
The position has changed substantially since the provisions of the Basic Conditions of Employment Act, 1983, became applicable to domestic employees. There are also various trade unions and associations to assist such employees. However, part-time domestic workers who do not ‘live in’ and work on a casual basis do not fall within the ambit of the Act.
Domestic workers spend a great deal of time in the home and, of necessity, have a close relationship with their employers. If the relationship between them is poor, life may become unpleasant for both parties.
Hiring a domestic worker carries with it all the responsibilities of any employer. When you agree to have a person working in your home, a contract comes into being between you and the worker. This may be a formal letter setting out wages and benefits, working hours, duties, holidays and sick leave. Usually, however, it is an oral agreement, which at best clearly defines wages and conditions. However, the Basic Conditions of Employment Act imposes certain conditions and terms which govern the leave (sick and otherwise) that the employee is entitled to, maximum hours that may be worked and the notice that must be given if the contract is terminated.
In terms of the Act, no live-in domestic employee may be required to work more than 46 hours (excluding meal intervals) per week, plus a maximum of 10 hours of overtime a week. Up to 14 hours’ overtime is allowed if the person cares for children, the sick, aged, frail or disabled. No domestic employee may be permitted to work more than 14 hours a day.
A live-in domestic employee is entitled to annual leave of at least 14 consecutive days (excluding public holidays falling within the period) and sick leave of 36 days in three years.
Should a domestic employee work on a public holiday that would, but for the public holiday, normally have been a working day (assuming a full day is worked), the employee is entitled to be paid double wages for that day, or one and one-third of the normal wages plus a day’s paid leave, within seven days of the public holiday.
A female domestic worker might look after a small child while the mother is at work, for instance, but if her duties do not extend to the evenings, it is unfair to demand that she baby-sits while the parents go to the theatre. In such a case she might be offered a reward – money or additional time off – in return for looking after the child while the employers are out. However, the employer has no right to insist on the employee baby-sitting or doing some other form of overtime work.
Quick Tip – Writing a reference
A domestic worker cannot demand a reference on leaving your employ. However, a letter of recommendation will help the person when he or she re-registers with a labour bureau or approaches prospective employers for work.
When writing a reference, state the full name and address of the person and the period he or she worked for you. You need not mention the wages you paid or the benefits you allowed, though these could be an indication of how much you valued the person’s services. Be honest in assessing the worker’s capabilities and the relationship the two of you had. Always invite a potential employer to contact you, giving your telephone number or, if you are leaving the area, your new address.
The working contract
One of the most important meetings with your domestic employee will be during the interview for the post.
Often only a vague agreement is reached, which can result in mutual dissatisfaction and disputes. If you work for most of the day, the performance of the employee – and the satisfaction of the household – will depend on how you set out the duties you expect the person to perform during working hours.
Always be specific about wages. If the person considers that they are too low, suggest that these could be increased for good work performance after a short probationary period. Be prepared to review wages at regular intervals in the light of the increasing cost of living and as a reward for efficient service.
Set a date each month for payment of wages. A domestic worker is entitled to prompt payment and this should never be withheld.
You may stipulate, if the person has to travel to your home, that part of the salary is specifically for bus, taxi or train fares. If so, you should adjust this part as fares rise.
Establish working hours. If you employ a live-in domestic worker who must be on duty early in the morning and for dinner, allow for reasonable rest periods in between. If the employee has to travel, make allowances for bus and train schedules. Days off should be established, as should paid holidays. The latter may have to fall in with your own travel plans.
A uniform or overalls are usually provided by the employer free of charge. Furthermore, agree to a balanced diet (assuming that you will supply food) and fix the time for the employee’s breaks.
A householder is under no legal obligation to provide sickness or accident benefits. Remember, though, that domestic employees are not covered under workers’ compensation legislation. Therefore, you should consider enrolling your employee with a medical aid scheme, or arrange for visits to your own doctor at your expense. Domestic workers are entitled to sick leave in terms of the Act.
A householder’s insurance policy usually covers accidents to people in your employ in your home. Check on this with your insurance company. Premiums for additional cover are low. Employers may not make deductions from the wages of domestic workers for breakages.
If your domestic worker ‘lives in’, allow for long weekends when he or she can visit family, even if this means rearranging your own family life.
Dismissing a domestic worker
Either party who wishes to terminate the contract of employment is required to give the other party notice.
If an employee is provided with food and accommodation, notice pay must consist of the cash wage plus the value of the board and lodging. You may give the person money instead of notice to allow more opportunity for finding alternative work.
If you believe that the person has committed a misdemeanour which justifies immediate dismissal, offer him or her the chance to resign. If your offer is accepted, you have every right to make the dismissal immediately effective without notice or wages in lieu of notice. However, wages earned before dismissal must be paid.
If you accuse the employee of a crime and your accusation is denied, summon the police. Should you withhold wages because you suspect, say, theft, you could be successfully sued for payment. If you make an unsubstantiated accusation, you could face an action for defamation.
A worker who is fired unjustly would probably receive legal aid in bringing an action against a former employer.
Records to be kept
In terms of the Act, unless there is a written agreement between the employee and the employer signed by both parties setting out the ordinary working hours of the employee and the wage payable, the employer must keep written records of the time worked by each employee and the wages which have been paid.
Bregman Moodley Attorneys Inc. 2015/089214/21
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