Here’s what you need to know if you employ a domestic worker

Consumers hardly think about themselves as employers, although many of us employ domestic workers. What we also often do not realise is that with employing someone you have certain duties and rights and not sticking to these can see you paying a hefty financial penalty.

In South Africa, the moment you hire a domestic worker, even if only for a week, you become a domestic employer with significant legal responsibilities. Many people are unaware of this and some mistakenly believe that employing foreign workers exempts them from complying with domestic employment laws.

However, the truth is far from it, Stuart MacGregor, labour law practitioner and official at the South African United Employers Organisation (SA)UEO, says.

“Non-compliance can lead to severe penalties and legal repercussions, including hefty fines and negative outcomes at the Commission for Conciliation, Mediation and Arbitration (CCMA).”

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Who is a domestic worker?

According to law, a domestic worker is anyone who works in a private household, including cleaners, gardeners and caregivers for children, the elderly, or the sick and disabled.

MacGregor warns that failure to comply with your legal obligations as an employer can result in hefty fines and penalties of anywhere between R10 000 to R50 000, depending on the severity and duration of the violation.

And if your domestic worker lodges a claim against you at the CCMA and you are found guilty of unfair labour practices, the worker may be awarded financial compensation that you will have to pay, he says.

There are a few things you must do when you employ a domestic worker:

• It is mandatory to sing an employment contract with your domestic worker
• You must give your domestic workers job descriptions if they work 24 hours or more monthly to ensure transparency and clarity regarding their roles and responsibilities.
• You must keep records containing essential employee information, including their ID, occupation, hours worked, pay and contact details. When the employee no longer works for you, you must retain these records for at least three years.
• Domestic workers must receive payslips containing relevant salary information on each payday.
• As soon as a domestic worker starts working for you for 24 hours or more per month, you must register the worker for UIF and workmen’s compensation to provide protection in case of unemployment and work-related injuries or illnesses.

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Your domestic worker must get a pay slip with these details

Details on the pay slip must include your name and address, the domestic worker’s name and occupation, the period for which payment is made, the domestic worker’s wage and overtime rate, the number of ordinary hours worked, the number of overtime hours worked, the number of hours worked on a public holiday or a Sunday, the domestic worker’s full wage, details of any other pay, details of any deductions made and the actual amount paid to the domestic worker.

Domestic workers are entitled to a minimum wage of R27.58 per hour. You are allowed to deduct amounts from the domestic worker’s salary for medical insurance, savings, pension fund, trade union subscription, order of account payment to a financial institution, rentals and loans or advances (not more than 10% of total wage).

However, you are not allowed to deduct an amount greater than the actual remuneration received, breakages (crockery, electrical appliances), damages (ironing), meals provided during working time, clothing and work equipment.

Deductions for accommodation can be deducted but cannot be more than 10% of the total wage on condition that the room is weatherproof and in good condition, has at least one window and a door that can be locked and is fitted with a toilet, a bath/shower or has access to another bathroom.

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Working hours and leave

Ordinary working hours for domestic workers are a maximum of 45 hours per week, with a maximum of nine hours per day when working five days and a maximum eight hours per day when working more than five days.

Domestic workers are not allowed to work overtime of more than three hours in any day and not more than 15 hours overtime per week. You also have to give your domestic workers a meal interval of one hour after working continuously for more than five hours.

As with all employees, domestic workers are also entitled to leave. They are entitled to:

• three weeks per year or one day for every 17 days worked
• sick leave calculated in a cycle of 36 months at the number of days worked during a six week period
• four consecutive months of unpaid leave for maternity leave
• five days per year for family responsibility leave.

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When you employment contract ends

When your domestic workers leave your employ, you have to remember:

• A contract of employment can only be terminated on notice of not less than one week if the domestic worker has been employed for six weeks or less
• Notice of four weeks is required if the domestic worker has been employed for six months or more
• Live-in domestic workers are allowed to stay on the premises for a month (notice period) or may agree to pay for the accommodation.

If you have to dismiss you domestic worker due to a change in your economic, technological or structural set-up, called operational requirement, you have to pay the domestic worker severance pay. Severance pay is payable only if there was no alternative employment available.

Severance pay is calculated at at least one week’s pay for every completed 12 months of continuous service. On termination of employment an employee is entitled to a certificate of service.

MacGregor says a labour inspector can enter your home to verify your domestic worker’s employment status upon reasonable notification. This is when you should also have all your paperwork and records available.

When you employ someone from another country, you have additional duties, he says. You can mitigate the risks of employing a foreigner by asking for the worker’s proper original passport and work permit and verifying their validity as well as the expiry dates. Your contract of employment with the domestic workers must then contain a specific clause to cover the timeous renewal of the work permit.

When your domestic worker has a valid, renewable work permit, he or she does not have to return to their country of origin and can do the renewal locally, but before the current work permit expires.