Domestic workers are now covered under the amended Compensation for Occupational Injuries and Diseases Act 1993 (COIDA) (Act 130 of 1993) and can claim compensation for injuries or diseases sustained while on duty from the Compensation Fund.
“Domestic Workers are the unsung heroines in this country and globally. They are a powerful group of women whose profession enables all economically active members of society to prosper and pursue their careers. Given the nature of their work, their relationships with their own children and family members are compromised, while we pursue our career goals with peace of mind, knowing that our children, our elderly family members and our households are well taken care of.” – Constitutional Judge AJ Victor in Mahlangu and another vs Minister of Labour and others ZACC24(2020) (hereafter referred to as the “Mahlangu case”).
In his introduction to the judgement in the Mahlangu case, Judge Victor succinctly describes the role and importance of domestic workers in South Africa. Unthinkably, the COIDA Act’s initial definition of an employee did not include domestic workers.
This aspect was eventually referred to the Constitutional Court when Ms Mahlangu’s daughter, who was financially dependent on her mother at the time, approached the Department of Labour to enquire about compensation for her mother’s death. She was then informed that she could neither get compensation under COIDA nor could she get unemployment insurance benefits for her loss, which would ordinarily be covered by COIDA.
Her mother, Ms Mahlangu was employed as a domestic worker at a private home by the same family for 22 years in Fairy Glen, Pretoria at the time of her death. On 31 March 2012, Ms Mahlangu tragically drowned in her employer’s pool in the course of executing her duties. Ms Mahlangu was partially blind and could not swim, which resulted in her drowning.
The exclusion of domestic workers in private homes as employees in terms of COIDA was in no uncertain terms declared invalid by the Constitutional Court.
The conviction of the court in its decision was further amplified by the fact that the order was made with retrospective effect from 27 April 1994.
As a result of the abovementioned constitutional judgement, domestic workers are now covered under the COIDA Act and can claim compensation for injuries or diseases sustained while on duty from the Compensation Fund. In a nutshell, this compensation will include temporary total disablement for temporary injuries, a permanent disablement lump sum for permanent injuries and a permanent disablement pension for partial recovery.
Dependants of domestic workers who died due to work-related injuries or occupational diseases can receive funeral expenses, a widow’s lumpsum and pension awards. The Compensation Fund also covers medical expenses and provides assistance devices, rehabilitation and return-to-work programs.
Duty of employers:
On 10 February 2021, the Department of Labour issued a notice (Notice 106 of 2021) which not only implements the changes to the Act but also places an obligation on employers of domestic employees to register as employers with the Compensation Fund and to submit the necessary returns as is required by COIDA. A registered employer is required to pay an annual fee into the fund, which is calculated on the amount earned by the domestic employee and the risk associated with the job.
The main employer of a domestic worker (which includes part-time and full-time employees as well as gardeners) is held accountable for any workplace injuries sustained by the domestic employee in the course and scope of employment. If registered with COIDA, the Compensation Commissioner will pay compensation due, thus limiting the liability of employers in respect of occupational injuries and diseases.
Employers of domestic workers are made aware of their duty to register with COIDA. Registration can be done on the Department of Labour’s website.
- Safllii: Mahlangu and Another vs Minister of Labour and Others (CCT306/19) 22ZACC24
- Article Cliffe Dekker: COIDA extended to Domestic workers 29 March 2021
- Business Tech Article: “New Laws for Domestic Workers in South Africa – Important Deadline for all Employers hitting this month” dated 1 June 2023
- Government Notice 106/2021 “Notice on the registration of Domestic Worker Employers in terms of Section 80 of the Compensation for Occupational Injuries and Decease Act as Amended
WRITTEN BY GERHARD SMIT
Gerhard Smit is a director at Miller Bosman Le Roux Attorneys.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).