If there is no way that a dismissal can possibly fair, or if the reasons for the dismissal is contrary to law, it is regarded as an automatically unfair dismissal.
Domestic workers who perform essential work, including cleaning, cooking, gardening etc., in and around the house are often not regarded by their employers as employees, especially due to the “loose arrangement” that exists in some cases.
Some households have domestic workers who only work for them once or twice per week, while others have domestic workers who are permanently employed. The perception that a domestic worker is not an employee is especially common in cases where a domestic worker does not work for one employer/household every day of the week (permanently).
The argument is often that the domestic worker is not an employee due to this “loose” or informal arrangement. For this reason, many employers are under the impression that it is not necessary to have an employment contract in place and that the Basic Conditions of Employment Act does not have to be complied with.
In terms of the Labour Relations Act, a person can be presumed to be an employee if it can be established that one of the following seven factors is present:
- the manner in which the person works is subject to the control or direction of another person;
- the person’s hours of work are subject to the control or direction of another person;
- in the case of a person who works for an organisation, the person forms part of that organisation;
- the person has worked for that other person for an average of at least 40 hours per month over the last three months;
- the person is economically dependent on the other person for whom he or she works or renders services;
- the person is provided with the tools of trade or work equipment by the other person;
- the person only works for or renders services to one person;
In most cases where a domestic worker works for another person, at least three of the factors listed above are present and it can, therefore, be presumed that the vast majority of domestic workers in South Africa - even those who only work once a week - are employees and should be treated as such.
It is important to have a written contract of employment with your domestic worker, stipulating the agreed conditions of employment, and it should be noted that failure to have a written employment contract in place does not mean that it will be easier to get rid of the employee at a later stage or that it is not necessary to comply with labour legislation. Domestic workers must also be registered with the Unemployment Insurance Fund (UIF). The employer and employee must each contribute 1% of the employee’s monthly salary towards UIF.
Below are some of the basic conditions of employment, as prescribed by the Basic Conditions of Employment Act, which is applicable to all employees, including domestic workers:
- Minimum Wage: The minimum wages for domestic workers are regulated by a sectoral determination (Sectoral Determination 7). This determination is amended by the Minister of Labour every year to increase the minimum allowed wages that an employer may pay a domestic worker. A copy of the sectoral determination that stipulates the current minimum wages for domestic workers can be downloaded by clicking here.
- Hours of work: An employer may not require or permit an employee to work more than 45 hours in any week, 9 hours in any day if the employee works for five days or less in a week or 8 hours in any day if the employee works on more than five days in a week.
- Overtime: An employee must be remunerated at one and a half times the employee’s hourly wage, for every hour of overtime worked.
- Meal Intervals (Lunch Break): An employee must have a lunch break of 60 minutes after 5 hours of continuous work.
- Public Holidays: Employees must be paid their ordinary daily wage for any public holiday that falls on a working day. If the employee works on a public holiday, this must be by agreement and paid at double the rate. A public holiday may be exchanged with another day by agreement.
- Annual Leave: Employees are entitled to 21 consecutive days’ annual leave or by agreement, one day for every 17 days worked or one hour for every 17 hours worked.
- Sick Leave: An employee is entitled to paid sick leave equal to the number of days that the employee would have normally worked in a six week period, in a three year cycle. An employee who works 5 days per week will, therefore, be entitled to 30 days’ paid sick leave, while an employee who only works 1 day per week will be entitled to 6 days paid leave in a three year cycle.
- Maternity Leave: Employees are entitled to four consecutive months’ maternity leave. It should be noted that maternity leave is unpaid, and the employee may claim maternity benefits from the Unemployment Insurance Fund during this period.
As with any other employee, a domestic worker may only be dismissed for reasons relating to conduct, capacity or operational requirements, and in each case, a fair procedure must be followed in terms of the Code of Good Practice, contained in Schedule 8 of the Labour Relations Act.
Employers of domestic workers should familiarise themselves with their legal obligations towards their employees, as failure to do so may prove to be costly.
Contact us for assistance with your domestic worker’s employment contract, UIF registration etc.