Editor’s note: Should you need any assistance with any of the above including becoming UIF compliant, helping your employee to apply for UIF, following the right procedure or for HRTorQue to run your domestic payroll to make sure you are compliant then please feel free to contact us.
There are estimated to be one million domestic workers in South Africa. Often these workers are in turn the only income earners in their families. While some employers have continued to pay their domestic workers during the lockdown, there appear to be instances where domestic workers’ services have been terminated immediately prior to the lockdown. In addition, when the lockdown ends it is anticipated many domestic workers will not be able to return to their jobs either because employers are concerned about increased covid-19 risk to their families or because the employers themselves are no longer being paid and are unable to afford their domestic worker anymore.
In this article we look at the various aspects of this very serious issue.
The government has urged that employers try to pay their employees where they can. It is important to note that despite rhetoric in the press and from unions, there has been no legislation passed requiring specific action. Existing legislation remains in place and therefore employers have the right to consider the options below and can choose if they wish to pay employees even where no work is performed. We hope where you can afford it that you continue to support your domestic workers.
Options for the employer
The following are the main legal options being actioned by employers during this difficult period:
- Requesting employees use their annual leave and when this is finished going on to unpaid leave. Under the BCEA Section 20 (10) unless there is a specific agreement to the contrary, the employer may tell the employee when to take annual leave. Then on the no work no pay principle unpaid leave can be applied where the employee is not performing any work and their annual leave is used up. The employer may choose to let the employee go into negative annual leave should they wish to.
- Moving the employee on to short time on the basis they are unable to work when away from their place of work. This will reduce the cost to the employer for the period of the short time.
- Mutually agreeing to reduce the employee’s pay. Note, the minimum wage regulations apply so the remuneration for hours worked cannot reduce below the R15.57 per hour legislated as the minimum wage from the 1 March 2020
- If the employer can no longer afford their domestic worker then the employee can be retrenched provided the correct process and payments are made (see below).
Reliefs available to the employee
Assuming the domestic worker is either not being paid because they are on unpaid leave or are on short time, the employee can apply to claim the following reliefs. Note they can only claim these if the employer is registered for UIF with the Department of Labour and in good standing (up to date with submissions and payments).
1. National Disaster Benefit
This would be claimed when the employee will not be receiving any money at all from the employer during the lockdown. The employee will receive a flat rate equal to minimum wage of R3,500 for the duration of the shutdown or for a maximum of 3 months whichever is shortest.
2. Reduced Work Time Benefit
This would be claimed when the employee will be receiving a reduced wage/salary as a result of the lockdown. The benefit received is the difference between what the employers pays and normal UIF benefits payable. This benefit will be dependent on the number of credits the employee has accrued with UIF.
3. Illness benefit
If the employee contracts covid-19 and is sick and unable to work (or self-isolating as a result) then the employee can claim illness benefits under UIF.
4. Other business reliefs
Unfortunately, it is not likely that a domestic worker will be considered as performing a trade and the other reliefs available to fund employees including the TERS scheme are unlikely to be available to domestic worker employers and employees.
Compensation Fund Payments for Domestic Workers
Despite a constitutional court ruling recently that domestic workers should be entitled to benefits from the Compensation Fund for illness arising from their employment the legislation has not been passed to enable this. Domestic workers are therefore currently not practically able to receive compensation from the Compensation Fund.
Termination of services
Under Sectoral Determination 7 and the BCEA, domestic workers are entitled to the same considerations as any other worker. This means you cannot arbitrarily terminate their services. Your options are most likely:
- Termination based on performance (this will be only be possible if this process was started prior to the lockdown allowing the employee a fair chance to improve their performance);
- A mutual separation agreement – payment for entering a mutual termination. The conditions and consequences must be clearly discussed and understood by the employee including that they will not be able to claim UIF as this is seen as a voluntary agreement;
- Termination of services based on retrenchment i.e. the role is no longer available. Where you intend retrenching your employee you need to follow this process:• Notify your employee of your contemplating retrenchment and advising of various options you have considered to try and avoid retrenchment;
• Give them opportunity to consider your alternatives and present any other alternatives that may assist in avoiding retrenchment
• Show that you as the employer have properly considered any representations and alternatives and provide feedback on whether they are valid or not;
• Assuming not valid, issue a notice of termination;
• On termination pay out any remaining annual leave plus the appropriate notice pay plus any retrenchment/severance pay:
– Notice Pay (you can ask the employee to work the notice period) (sectoral determination 7)
a. 0 to 6 months service = 1 week
b. 6 months or more = 4 weeks
– Severance/retrenchment Pay = 1 week per completed years’ service