Please note that this pertains to South African Labour Relations and Best Practice requirements
A number of my clients have found themselves either on the wrong side of the law or alternatively with a sullen, at odds with the world, domestic worker. Neither are fun to deal with and the reality is that meeting the requirements as an employer is not that difficult and having the correct procedures in place is not that difficult and usually calms the waters as your domestic employee now feels secure in their employment and you will have the means to measure their performance as well as have the law on your side in terms of the disciplinary codes.
Firstly let’s define who “Domestic Employees” are. They are your daily helpers, your maids, your chars, your gardeners. They are also your drivers or care givers to the elderly, the frail or the disabled as well as child minders or anyone who cares for your children. In short, they are anyone who works in your household.
Here are some of the basic legal requirements.
Like any other employee, your domestic worker needs and is entitled to have a written contract in place, irrespective of whether they are full time and even if they only work one day a week.
Like any other employment contract all the terms and conditions of the employment need to be listed. Issues such as, but not limited to:
– Starting and ending times
– Pay rate
– Leave requirements (include not only annual leave, but also sick leave and Family Responsibility leave)
– Any special requirements such as when leave must be taken or cannot be taken etc.
Obviously your domestic worker needs to understand clearly what these terms and requirements are, so you need to go through them slowly and carefully and if necessary, in their home language to ensure that they do in fact understand what your expectations are. If your domestic worker is illiterate, make sure that you explain things in simple terms.
No one can be forced to sign a document and many domestic workers are terrified of putting their ‘mark’ to anything. So if your domestic worker refuses to sign, you can fulfil your compliance requirements by documenting this on their document and then giving them a copy of the document. Don’t forget to keep one for yourself though – ensuring that you have also documented the refusal to sign the document and the date that the document was given to them.
Wages and Related Criteria
The rate of pay for Domestic worker’s, like any other category, is protected by law and there are minimum rates of pay for hourly/daily/weekly/monthly paid individuals. Workers who work in the rural areas for example are entitled to a different level of pay to those working in the cities and things like whether they are ‘live in’ or if they have to take public transport, are also taken into consideration. So you would need to familiarize yourself with what these differences are. Please go to the Department of Labour’s website (www.labour.gov.za ) to get this information.
Remember that if your domestic worker/gardener works for you for more than 24 hours a month (and yes this means if you have someone in to help you once a week, this does apply to you), you have to register with the Department of Labour as an employer. Once you have received your registration number, you have to register your employee for UIF. The UIF is calculated at 2% of the employees total wage. The employee has to pay 1% (which must be deducted from their wages) and the employer has to pay 1% as well. This money has to be paid over to SARS (South African Revenue Services) every month and before the 7th of the following month.
All employees are entitled to receive a pay slip indicating what their remuneration is, what deductions have been made and how much leave they are entitled to. In the case of casual and/or ‘piece’ workers, it is suggested that you get them to sign in receipt for any money that has been given to them for services rendered. This will remove any emotional outbursts such as “I worked all day cleaning the garage and I never got paid!”
Leave Related Issues
The usual suspects apply – Annual Leave, Sick Leave, Family Responsibility Leave and of course Maternity and now Paternity Leave.
Just like any other employee, your domestic workers are entitled to paid annual leave and this is calculated at the usual three weeks (15 working days) per annum for full time workers or 1 (one) day for every 17 (seventeen) days worked.
In terms of sick leave, the cycle is also 36 months and the domestic worker is entitled to an amount of paid sick leave that is equal to the number of days that they would normally have worked during a period of six weeks or 30 days if they is full time employed. So for example, your once a week char/gardener, in this instance would be entitled to 6 days and your full time (Monday to Friday) domestic employee would be entitled to 30 days paid leave for every 36 month period.
For the first six months of employment however, your domestic worker is only entitled to 1 (one) day’s sick leave for every 26 days worked.
Like all other forms of employees, your domestic worker is entitled to 4 (four) months unpaid maternity leave and you are obliged to ‘re-employ’ them after their 4 months is up. Remember also, that you cannot dismiss them for being pregnant or getting pregnant and doing so would be considered ‘unfair’ by the CCMA and you would be fined and find yourself hugely out of pocket. So don’t do it.
Domestic employees who are employed for more than 24 hours a month (again this applies to your weekly char or gardener too) are also entitled to take Family Responsibility Leave in the amount of 5 (five) days per annum.
Bits and Pieces
All the other HR requirements that apply in the Corporate Employment world also apply to domestic employees. So this of course means that you cannot just dismiss, you have to have a fair and reasonable reason for wanting to dismiss your domestic worker.
The rules around discipline also apply, so written warnings and disciplinary hearings need to take place and be documented in the usual fashion.
Performance appraisals should also take place at least annually and increases and/or bonus should relate to the results of these, also government will insist on a minimum annual increase.
Issues around retrenchment still apply and in terms of this employers are governed and restricted in exactly the same way as any other employer would be.
The rest of the terms and conditions in the Basic Conditions of Employment Act also then still will apply to your domestic employees and you need to be aware of the fact that non-compliance to any of these could result in you receiving a visit from the Department of Labour inspector who may then issue a compliance order or even issue you with a fine.
The simple or most cost effective measure of course, is to ensure that you are compliant and keep yourself that way or as one of my clients (who learned the hard way) always says “Yes, it is expensive to be compliant, but it is even more expensive to be non-compliant!”