Employment Contract – is your domestic worker lawfully employed?

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HOW DOES APPLICABLE LEGISLATION AFFECT ME AS A DOMESTIC EMPLOYER?

Many people employ a domestic worker and / or gardener, some even without an employment contract.  They work for them for a long time and even become part of the ‘family’ at times. Then, on top of it, they make use of small contractors to paint their houses, help cut down trees, build a wall, and much more.  It suits them, as hiring someone off the street to do maintenance on the house is normally cheaper that contracting a large company.  We always think it is a win-win situation – we pay less, and the person makes some money. But is it really a win-win?

THE DOMESTIC EMPLOYMENT CONTRACT

employment contract - example

Image of Employment Contract

I have met so many people who employ a domestic worker or a gardener, without any written employment contract. ‘Ag, she only works for me for a couple of hours a month’, I often hear.  What planet are these people from? Sectorial Determination 7 has been promulgated since the early 2000s.  In fact, it was published in the Government Gazette on 15 August 2002. This determination forms part of the Basic Conditions of Employment Act, and deals specifically with the domestic worker sector.

The Act covers the following persons:

  • All domestic workers in South Africa
  • Persons employed by employment services
  • Independent contractors
  • A person doing gardening in a private home
  • Persons who look after children, the aged, the sick, the frail or the disabled in a private household
  • A person employed to drive the car taking the children of the household to school

Failure to know the contents of this legislation may result in domestic employers ending up in hot water.  The determination is very clear on the employment contract, wages, UIF, leave, maternity leave, overtime, and notice.  Domestic workers deserve the peace of mind of a written agreement that follows the rules, and domestic employers need a written agreement to use in case something goes south, and he/she ever ends up at the CCMA.

WHAT ABOUT UIF?

Many employers employ off the street and do not bother to register the worker for UIF. The law is clear – if you employ someone for more than 24 hours a month, you must register him or her for UIF.  This can be done easily using the Department of Labour’s uFiling System.  The employer must then deduct 1% from the worker’s wage, and pay this over to the UIF. The employer must also pay 1% of the wage, thus ending up with a total of 2% being paid over to the UIF on a monthly or annual basis.

WHAT ABOUT INCOME TAX?

At this stage, the specified wages for domestic workers are below the South African Income Tax threshold, so theoretically they (and their employers) do not have to be registered for PAYE.  The Sectorial Determination is also silent on the matter of PAYE, and as such one can assume registration for PAYE is not required. However, when you pay your domestic worker much more than the minimum threshold for PAYE, should they then start paying income tax? If so, will SARS’ systems even allow for a domestic employer to be able to register for PAYE?  At this stage, no one knows….

HEALTH AND SAFETY LEGISLATION – DOES THAT APPLY TO ME?

The Occupational Health and Safety Act (OHSA) includes domestic workers.  Therefore, the domestic employer must make sure that the workplace is safe and healthy, and must not allow any worker to do work that is potentially dangerous. The worker must know what the dangers of the work are.  So, it is NOT a good idea to let your domestic workers work without sufficient protective clothing or equipment.

AND COIDA? WHO WILL PAY IF MY DOMESTIC SUFFERS AN INJURY AT WORK?

Despite government making promises that domestic workers will soon be added to the Compensation for Occupational Injuries and Diseases Act (COIDA), nothing has materialised to date. So, as it stands, domestic workers cannot claim for injuries sustained at work.

ALL THESE LAWS ARE TOO MUCH FOR ME, I WILL JUST MAKE USE OF AN INDEPENDENT CONTRACTOR

If I make use of Joe’s Garden Services for my garden maintenance, or use the guy advertising his painting skills on the street corner to do some painting, I should be OK….

Nope, not necessarily.  A ‘real’ independent contractor is someone who has a public liability insurance policy in place and who stands in good stead with COIDA.  In other words, his company is covered for any liability that may come his way.

If you make use of someone who does not have these very important aspects in place, you, as the home owner, then becomes the ‘employer’ of the so-called independent contractor, and you may be held liable for any injuries or damage to property.

DOOMSDAY SCENARIO

Let us combine all the above into a scenario that probably plays out in many households…

  • The Madam of the house employs a domestic worker but does not bother to enter into a written employment contract. She also is totally unaware of the regulations regarding UIF.
  • The Mister of the house employs a gardener in much the same way as Madam does. No employment contract, no UIF.
  • The Madam expects her domestic worker to wash the windows on the second floor of the house. It is a dangerous job. She also expects her to use dangerous chemicals, but does not provide personal protective equipment, such as gloves.
  • The Mister expects his gardener to chop down a very tall tree. It is a dangerous job. He does not supply a sturdy ladder and proper saw.
  • The Mister often picks up a person from the street to do some maintenance on the house. He brags with his friends that he uses an ‘independent contractor’, which is much cheaper than contracting a registered maintenance company.

The sequence of events…

  • The Madam’s domestic worker falls out of the 2nd floor window whilst attempting to clean the windows. She breaks both legs. Madam shrugs her shoulders and says ‘I cannot afford the medical bills, and it is not my fault that government drag their heels to include domestic workers in the COIDA’.  She dismisses the worker. The worker takes her to the CCMA for unfair dismissal. She also files a complaint at the Dept of Labour, as she did not qualify for UIF.  Madam needs Valium.
  • Mister’s gardener falls out of the tall tree. He falls onto the sharp blade that he modified to try and cut down the tree, and dies. Mister tries to shift the blame – ‘but he should not…. He should have asked…’. He receives a visit for the Department of Labour. He has to take some brandy and coke to calm his nerves.  The gardener’s family opens a law suit against the Mister.
  • Two weeks later, the ‘independent contractor’ loses an arm trying to break down a perimeter wall. At the same time, parts of the wall fall on the neighbour’s new Mercedes. Mister feels comfortable that he is not to blame, as this time it is not his employee that got hurt.  The ‘contractor’ did not have any insurance in place.  Mister receives another visit from Dept of Labour.  Mister’s neighbour sues him for the damage to the Mercedes.

THE RIGHT THING TO DO

Both Mister and Madam tried to shy away from their responsibilities. Their failure to read the sectorial determination and to get written agreements in place, caused pain and suffering to their employees and their families. They should have:

  • Studied the Sectorial Determination and ensured that they followed it verbatim.
  • Introduced a written employment contract for both the domestic worker and gardener.
  • Registered both for UIF if they worked more than 24 hours per month according to their employment contracts.
  • Mister should have asked the ‘contractor’ if his COIDA payments were up to date, and if he had public liability insurance. If not, as was the case, Mister should have realised he is technically the employer of this man and that any incident would still be his responsibility.
  • Next time Mister should rather use a reputable company whose workers are covered by COIDA and who has public liability insurance in place.

While the above scenario sounds a little fictional, it serves to illustrate how easily domestic employers can get into trouble for not following the rules.  Do not fall into the trap. Read the law and be informed.

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