Constitutional Court ruling: Domestic workers and their legal rights
22 Dec 2020
Hundreds if not thousands of domestic workers have for decades not been treated fairly in terms of their legal rights. Certain employers of domestic workers, and I know from experience in representing domestic workers at the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), simply do not comply with the law when employing domestic workers.
Until recently many employers have simply not paid any attention or have not made the effort to find out what the legal rights of their domestic workers are. I generalise of course, many employers, but not nearly enough, do indeed treat their domestic workers fairly.
The Constitutional Court Ruling all Employers should know about:
Legal compliance in respect of domestic workers has for a moment in November 2020 been too short of a topic of conversation, in my opinion, when a landmark judgment was handed down by the South African Constitutional Court in November 2020, cited as Mahlangu and Another v Minister of Labour and Others (CCT306/19)  ZACC 24 (19 November 2020).
The ruling stated that certain sections of the Compensation for Occupational Injuries Act, 1993 (“COIDA”) are unconstitutional for excluding domestic workers from the definition of an “employee” and in turn denying them compensation if they were to be injured on duty or regrettably pass on while on duty, which has in fact happened.
The history of Domestic Workers being denied compensation from COIDA:
The plight of domestic workers as one of the most vulnerable categories of employees in South Africa has basically gone overlooked and ignored by most. The occupation of being a domestic worker is often associated with uneducated women earning a low income with little, if any, statutory protections. This needs to stop. As employees or business owners who expect to be treated fairly and compensated adequately for their services, along with benefits and protection by COIDA it is only fair that we treat others as we expect to be treated. It is shocking that twenty-six years into democracy, and still domestic workers could not claim compensation for contracting a disease, being injured or disabled, or even passing away while at work. COIDA expressly and unjustly excluded domestic workers from the class of workers who could benefit from and enjoy its protection.
The concluding remarks of the landmark judgment:
“Domestic workers – despite the advent of our constitutional dispensation – remain severely exploited, undermined, and devalued as a result of their lived experiences at the intersecting axes of discrimination. Yet, these Black women are survivors of a system that contains remnants of our colonial and apartheid past. These Black women are brave, creative, strong, and smart. They are committed mothers and caretakers and have the ability to perform work in conditions that are challenging both psychologically and physically. These Black women are not “invisible” or “powerless”. On the contrary, they have a voice, and we are listening. These Black women are at the heart of our society. Ensuring that they are afforded basic rights, and an avenue to vindicate these rights, is central to our transformative constitutional project”. The public can download the ruling here: http://www.saflii.org/za/cases/ZACC/2020/24.pdf
Of course, the first question is how does an employer of a domestic worker register for COIDA. I would suggest the easiest route would be to visit the COIDA registration website being https://www.gov.za/services/compensation-fund/register-compensation-fund.
In conclusion, and while we are on the topic, I would appeal to all employers to register their domestic rorkers with Department of Labour and the Unemployment Insurance fund. As we are now into the second wave of COVID-19, we know not what will 2021 look like and we need to protect our most vulnerable workers whom we employ from possibly losing their jobs through retrenchment as has been the case in 2020.
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