Everything you need to know about Domestic Employment
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Disputes usually arise because a Domestic Worker is not given an Employment Contract containing the specific terms and the conditions of the employment. The law requires that each Domestic Worker must have an Employment Contract. This contract does not have to be in writing, and it can be a verbal contract, but the Domestic Worker must clearly understand all the terms and conditions of employment. The problem with a verbal contract is that when a dispute arises, it is difficult for the Employer to prove that the Domestic Worker was aware of the specific terms and conditions. Because legislation that governs employment was written to protect the Domestic Worker, the burden of proof lies with the Employer to convince a commissioner/judge that the Domestic Worker was aware of the terms and conditions pertaining to the dispute.
The same applies to a Duty Sheet which stipulates exactly what is required of the Domestic Worker on a daily, weekly or monthly basis. If the Domestic Worker is not given the specifics of what to do during working hours, the Employer cannot take any steps against the Domestic Worker if the specific task is not done to the required standard.
A proforma Employment Contract and Duty Sheet is also not always the correct answer, as each employment relationship differs. It is therefore in the best interest of both the Employer and the Domestic Worker to agree to an Employment Contract for their specific and unique employment relationship.
The sectoral determination pertaining to Domestic Workers stipulates that Domestic Workers must work 180 normal working hours per month, or 45 normal working hours per week. This means that a Domestic Worker who only works 5 days per week must work 9 hours per day from Monday to Friday. A Domestic Worker who works 6 days per week must work 8 hours per day from Monday to Friday and 5 hours on the Saturday.
The Employer and the Domestic Worker must agree to the starting hour and the ending hour of the daily work day, but the normal working day may not start earlier than 06h00 in the morning or end later than 18h00 in the evening. If this is the requirement, legislation also guides the terms and conditions pertaining to this.
Domestic Workers may agree to work a compressed week in which they can work up to 12 hours per day, with the condition remaining that they may still not work more than 45 normal working hours per week.
Legislation also guides the overtime that Domestic Workers are allowed to work, with the specific requirement that Domestic Workers may not work more than 10 hours overtime per week. The Domestic Worker can then either be paid for the overtime worked, or can receive “time-off” in lieu of the overtime worked. Whatever the situation, the Domestic Worker must agree to it and it must be contained within the Employment Contract.
A Domestic Worker must have a 60 minute meal break after 5 hours of work. If a Domestic Worker works less than 6 hours per day, the Employment Contract can contain the agreement that the domestic worker will not use a meal break. The meal break can be compressed to 30 minutes per day, and the domestic worker and employer can agree to the time when the meal break will be taken.
The Employer is obliged to pay the minimum salary as determined by the Dept of Labour on a yearly basis for the specific area in which the Domestic Worker is employed. This minimum salary is prescribed each year for the period 1/12 of the current year, until 30/11 of the following year.
The minimum salary payable to Domestic Workers only makes provision for a monthly, weekly or hourly rate. This means the following:
Domestic Workers must work 180 hours per month with the
scheduling of the hours worked agreed to in the Employment Contract.
Domestic Workers must work 45 hours per week with the
scheduling of the hours worked agreed to in the Employment Contract.
Domestic Worker and the Employer must agree to the amount of hours to be worked per day and the days on which they must be worked, and this must then be stipulated in the Employment Contract.
There is no requirement for the Employer to pay any transport allowances, yearly bonuses, etc, and the Employer does this out of free will. If the Employer pays more than the required minimum salary per month, and the Employer structures the salary paid to the Domestic Worker correctly, the Employer will have the option to determine monthly whether the full amount should still be paid to the Domestic Worker, with the requirement that the minimum salary must be paid. This means that the amount above the minimum salary can be structured as an “incentive” which is paid for work that was done to the required standard by the Domestic Worker.
The Employer may only deduct the following from the Domestic Worker:
- The Rand value of any Unpaid Leave taken by the Domestic Worker.
- Up to 10% of the total wage due to the Domestic Worker for accommodation and the repayment of loans or salary advances.
- Amounts that must be paid to third parties on behalf of the Domestic Worker (such as banks, unions, etc) but only with the written consent of the Domestic Worker.
- Payments, such as UIF or PAYE as is required by legislation.
These deductions must be provided for in the Employment Contract, even if no values are allocated to them.
The Employer may only deduct losses or damages caused by the Domestic Worker under the following conditions:
- The Employer has followed a fair disciplinary procedure and has given the Domestic Worker the chance to show and motivate why the deduction should not be made.
- The Domestic Worker agrees to the deduction in writing.
- The total deduction made is not more than 25% of the net salary due to the Domestic Worker.
This deduction is then made in lieu of a disciplinary warning and the Domestic Worker has a clean disciplinary record for the specific incident after the deduction has been made.
The Employer must provide the Domestic Worker with a salary advice (pay slip) once a month, irrespective of the method and the frequency with which the Domestic Worker is paid.
The salary advice must contain all the information as is stipulated by legislation.
If the Domestic Worker is paid in cash, or by cheque, the salary must be placed in an sealed envelope and handed over to the Domestic Worker. This envelope then becomes the property of the Domestic Worker. The Domestic Worker must the also preferably sign for receipt of the payment in a register maintained and kept by the Employer. Such payment must be made during working hours and at the premises where the domestic Worker works.
Payment must be made by the Employer to the Domestic Worker on the normal pay day agreed to between the Employer and the Domestic Worker, and which is stipulated within the Employment Contract.
Any Employer who employs a Domestic Worker for more than 24 hours per month must register with the UIF as a Private Household, and then register the Domestic Worker as an Employee of the Private Household.
A total amount of 2% of the gross basic salary of the Domestic Worker must be paid over to the UIF as the UIF Contribution for the Domestic Worker. Of this 1% can be deducted from the Domestic Worker with the Employer contributing the other 1%.
UIF Contributions can be paid monthly or yearly. The monthly UIF Contribution is paid in arrears, meaning that the contribution for January (as an example) must be paid over the UIF by the 7th of February. If the 7th does not fall on a normal business day, the Employer must pay the UIF Contribution before or on the last business day before the 7th of the month.
If the Employer wants to pay the UIF Contributions yearly, written permission must firstly be obtained from the UIF. In this instance, the UIF Contributions are paid in advance for the current Tax Year. This means that the Employer must determine the UIF Contributions for the Domestic Worker for the current Tax Year, and this total amount must then be paid over to the UIF by the 7th of March. The Employer may then also not deduct the total yearly 1% UIF Contribution made by the Domestic Worker, from the Domestic Worker in a single month, but must continue to deduct only 1% of the total monthly basic salary from the Domestic Worker over the 12 month period of the current Tax Year.
Workplace discipline for the domestic worker
Employers are very reluctant or hesitant to take disciplinary steps against Domestic Workers for a variety of reason. This creates a major problem for the Employer in that the Domestic Worker then accepts that whatever was done wrongly (in the eyes of the Employer), as acceptable and allowable(in the eyes of the Domestic Worker). By allowing the Domestic Worker to start work 45 minutes late every day, or to take a hour and a half lunch time every day, creates the impression with the Domestic Worker that it is acceptable to do so.
The problem with this is that the Employer then allows it for a period of time, and then one day, when the Employer has finally had enough, or the Domestic Worker does something else, summarily dismisses the Domestic Worker. If the Domestic Worker then reports the Employer to the CCMA, the Employer has to supply the burden of proof that the dismissal of the Domestic Worker was justified.
The Employer has to supply substantive proof that the dismissal was justified, and also convince the commissioner that a fair procedure was followed.
By then recalling a list of incidents over a period of years which the Domestic Worker was never informed about or warned about, does not constitute valid substantive proof or indicate that a fair procedure was followed.
For a fair procedure, disciplinary steps must be taken in a series of increasing severity, depending on the nature of the incident requiring disciplinary steps.
Theft, even as a first offence, would allow the Employer to immediately do a disciplinary hearing and to dismiss the Domestic Worker summarily without any other steps having to be taken. Coming late for work (as an example), could require a verbal warning, followed by a written warning, followed by a final written warning, and ending with a disciplinary hearing, in which dismissal could then be the sanction. This would also be determined by the substantive nature of the offence, and could negate some of the steps to get to the disciplinary hearing.
Annual leave is calculated over a yearly leave cycle, starting on the date of employment of the Domestic Worker, and ending on the day before the 1st anniversary date of employment. Each following yearly leave cycle is calculated in the same manner. A Domestic Worker has to complete a full yearly leave cycle before leave days due for that yearly leave cycle can be taken.
For each completed yearly leave cycle, the Domestic Worker is entitled to 21 consecutive days of annual leave. Consecutive days include Saturdays and Sundays, but excludes public holidays. This annual leave must be taken within 6 months of completion of the yearly leave cycle. The employer may grant the domestic worker any number of “occasional annual leave days” at any period during the yearly leave cycle, and then deduct these “occasional annual leave days” from the 21 consecutive days of annual leave that will be due at the end of the yearly leave cycle.
The dates and times over which annual leave or “occasional annual leave days” may be taken rest at the discretion of the Employer, provided that legislation is complied with.
For Domestic Workers working on Employment Contract requiring a fixed amount of full work days per week and per month (e.g. every Monday, Wednesday and Friday), annual leave is accrued at 1 day of annual leave for every 17 days worked. This in essence means that on the completion of the yearly leave cycle, the Employer must pay the Domestic Worker for the amount of annual leave days accrued, even though the Domestic Worker does not come to work.
For Domestic Workers working on Employment Contract requiring a fixed amount of hours of work per day on specific days of the week and per month (e.g. 4 hours of work on every Monday, 5 hours of work on every Wednesday and 3 hours of work on every Friday), annual leave is accrued at 1 hour of annual leave for every 17 hours worked. This once again means that on the completion of the yearly leave cycle, the Employer must pay the Domestic Worker for the amount of annual leave days accrued (calculated out of the amount of hours accrued), even though the Domestic Worker does not come to work.
The Employer must also keep record of all Annual Leave taken and the Domestic Worker should sign an acknowledgment that Annual Leave was taken. If a dispute should arise, the Employer will be able to provide the required evidence that the Domestic Worker did indeed take Annual Leave. If not, the Employer might have to compensate the Domestic Worker on termination of employment, for Annual Leave that was not taken.
Sick leave is due over a 3 yearly sick leave period and is calculated over a 6 week work period. The amount of sick leave days that may be taken by the Domestic Worker during the 3 yearly sick leave period is the amount of days worked by the Domestic Worker in a 6 week work period. If the Domestic Worker works 6 days per week, the amount of sick leave days that may be taken is 36 days (6 weeks x 6 days worked per week). If the Domestic Worker works 3 days per week, the amount of sick leave days that may be taken is 18 days (6 weeks x 3 days worked per week).
During the first 6 months of employment, a Domestic Worker is only entitled to 1 day of sick leave for every 26 days worked. After the initial 6 month period, the full quota of sick leave days for the 3 yearly sick leave period becomes due, and any sick leave taken during the initial 6 month period is subtracted from the sick leave due for the remainder of the 3 yearly sick leave period. Sick leave not taken is also not carried over to the next 3 yearly sick leave period. Any sick leave not taken in the 3 yearly sick leave cycle is also not paid out to the Domestic Worker for any reason.
Sick leave means that the Domestic Worker is medically unfit to perform her/his normal daily duties. Therefore, a routine check-up, an examination or tests done at a doctor or a clinic, the collecting of medicines, visits to optometrists/gynecologists/physiotherapists or taking sick children or relatives to medical facilities, do not qualify as sick leave. Annual leave, occasional annual leave or unpaid leave must be taken for these occurances.
A Domestic Worker does not have to provide a medical certificate if a single sick leave day is taken, but must provide a valid medical certificate if sick leave for 2 days or more is taken. When the Domestic Worker takes another single sick leave day in a 8 week period following a first single sick leave day, a valid medical certificate has to be provided for the second single sick leave day.
A valid medical certificates may only be issued by the following:
- Medical Practitioner (a doctor registered with the Health Professions Council of SA)(HPCSA).
- Dentist (registered with the HPCSA).
- Psychologist (registered with the HPCSA).
- Any other Health Services Practitioner registered with the Allied Health Service Professions Council.
Medical certificates issued by any Traditional Healer or nurses/sisters at clinics who are not qualified to carry out examinations and make diagnosis, does not constitute a valid medical certificate.
Any days taken as sick leave which requires of the Domestic Worker to provide a valid medical certificate and for which the Domestic Worker does not provide a valid medical certificate, can be deducted from the Domestic Worker as unpaid leave. If the Domestic Worker agrees to it, such days can also be deducted from the annual leave due to the Domestic Worker.
Any medical expenses incurred by the Employer on behalf of the Domestic Worker, such as payment for the doctor’s fees, or prescribed medicine, may be deducted from the remuneration due to the Domestic Worker, provided that the prescribed legislative requirements for deductions is adhered to.
Family Responsibility Leave
Family responsibility leave is only applicable to Domestic Workers who work on at least 4 days a week for the Employer.
A Domestic Worker is entitled to 5 days of family responsibility leave per yearly leave cycle, with the stipulation that such leave only becomes due after the first four months of employment in the first yearly leave cycle.
Family responsibility leave not taken in the yearly leave cycle is also not carried over to the next yearly leave cycle and any such leave not taken is also not paid out to the Domestic Worker for whatever reason.
Family responsibility leave may only be taken under the following circumstances, and the Employer may require the Domestic Worker to provide reasonable proof thereof:
- Birth of the Domestic Worker’s child.
- Illness of the Domestic Worker’s child.
- In the event of death of any of the following:
- Domestic Worker’s spouse or life-partner.
- Domestic Worker’s parent or spouse/life-partners parents, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
The Employer may grant the Domestic Worker annual leave or unpaid leave when the family responsibility leave entitlement of the Domestic Worker for the yearly leave cycle has been used.
Domestic Workers are entitled to at least 4 consecutive months of maternity leave.
Domestic Workers may commence with their maternity leave at any time from 4 weeks before the expected date of birth, on any other date as agreed to between the Employer and the Domestic Worker or on a date determined and certified by a medical practitioner/midwife as necessary for the Domestic Worker’s health or that of the unborn child.
A Domestic Worker may not work for 6 weeks after the birth of the child, unless a medical practitioner/midwife has certified tha the Domestic Worker is fit enough to do so.
An Employer does not have to pay a Domestic Worker for any period of maternity leave, and the Domestic Worker must claim Unemployment Benefits from the UIF for any period of maternity leave taken. Therefore it is important for the Employer to register with the UIF as a Private Household and to register the Domestic Worker as an Employee and pay the monthly UIF contributions.