South Africa has a vast number of domestic workers, which includes housekeepers, nannies, gardeners, domestic drivers etc. Until 2002 domestic workers were not protected by any specific legislation. However, the unique conditions of our country’s domestic sector necessitated that minimum standards of employment be set for domestic workers. As a result in 2002 the Minister of Labour promulgated Sectorial Determination 7 which sets out, amongst other things, the minimum wages, working hours, leave days and termination rules for domestic workers.

However, to date, domestic workers employed in a private household have been expressly excluded from the scope of the Compensation for Occupational Injuries and Diseases Act, better known as COIDA. But this may be about to change.

In terms of COIDA, employees and dependants of employees can claim from the Compensation Fund (which is governed by COIDA) if an employee:

• Was injured in an accident while busy with his or her work.
• Contracted or sustained an occupational illness or disease through his or her work.
• Died from an occupational disease or workplace accident.

The five main types of compensations that may be claimed are:

• Temporary disability
• Permanent disability
• Medical expenses
• Death
• Additional compensation

Only the employer is required to register with and contribute to the Compensation Fund. Employers are not allowed to deduct contributions from the employee’s wages. On the other hand employees who are covered by COIDA are not allowed to sue their employers for any loss of income either if they are injured or killed at a workplace or become sick as a result of their work. The employer does however have a legal duty to take reasonable steps to prevent or reduce accidents that may occur in the workplace.

Although the definition of ‘employee’ in section 1 of COIDA is broad enough to include a domestic worker, domestic workers who work in a private household have till now been expressly excluded from the definition of ‘employee’. As a result, a domestic worker’s only recourse is to institute civil proceedings against his/her employer for damages suffered due to an occupational injury or disease.

It is this questionable legal position that prejudices domestic workers as a class of vulnerable employees who will not be able to afford litigation against their employers, which has necessitated a relook at the current exclusion of domestic workers from the protection of COIDA.

Accordingly, on 6 September 2014, Labour Minister Mildred Oliphant announced that South Africa’s domestic workers are on the verge of being covered by COIDA, with several public hearings and a parliamentary review of COIDA being planned.

In the event that domestic workers are to be included within the scope of COIDA, it is important that the employer of a domestic worker take note of the following:

• The employer’s house is the workplace of the domestic worker and therefore the employer will have to take reasonable measures to ensure that the house presents a safe working environment.
• There will be a legal duty upon the employer to register the domestic worker for compensation purposes and to pay regular contributions.
• The employer will also be obliged to prepare an annual statement of earnings for the domestic worker.
• In terms of section 14 of the Occupational Health and Safety Act, domestic workers will still have a general legal duty to look after their own personal health and safety, with a breach of this duty by the domestic worker or negligence on the part of the domestic worker potentially impacting on the amount of compensation that he or she may receive.
• Notwithstanding the above, the employer may be liable for up front expenses such as ambulance transport or medical care.

Until the inclusion of domestic workers is confirmed however, the position remains that domestic workers are not covered by COIDA. Employers should nonetheless show foresight and already evaluate their domestic workplaces and take reasonable measures to ensure a safe working environment for their domestic workers.