SYLVIA BONGANI MAHLANGU AND ANOTHER V MINISTER OF LABOUR AND OTHERS
This matter concerns section 1 (xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“the Act”), concerning the exclusion of domestic workers employed in private households. It was brought by Ms Sylvia Mahlangu, the daughter of the deceased, Maria Mahlangu who on the morning of 31 March 2012 passed away whilst performing her duties as a domestic worker in a private household.
Ms Maria Mahlangu was cleaning the windows when she slipped and drowned. When her daughter (Sylvia Mahlangu) approached the Department of Labour (“the Department”) to obtain information regarding compensation for the death of her mother, as she was solely dependent on her, she was informed by the Department, that she does not qualify for compensation or for an Unemployment Insurance benefit, which in the ordinary course would have been covered by the Act.
The Applicants brought an application in the High Court to have section 1 (xix)(v) of the Act declared unconstitutional as it excluded domestic workers employed in private households from the definition of an employee. They argued that the exclusion infringes the right to equality, specifically section 9(3) of the Constitution. Furthermore, that the exclusion made an irrational distinction between privately employed domestic workers and domestic workers covered by the Act, that this irrational distinction had no legitimate government purpose and that the distinction was at odds with the very purpose of the Act as the Act was established to afford individuals social insurance inter alia when injured during the course and scope of their employment. Moreover, the exclusion infringed the right to social security under section 27 (1)(c) of the Constitution.
On 23 May 2019, the High Court declared the exclusion unconstitutional and invalid, ordering that the section be severed from the Act. On 17 October 2019, the High Court further, ordered that the declaration of invalidity apply retrospectively in order to assist domestic workers who died or were injured prior to the granting of the order. The Applicants then sought confirmation of the order and the High Court’s ruling of constitutional invalidity in the Constitutional Court in terms of section 172(2)(d) of the Constitution, further persisting in their contention that section 1(xix)(v) of the Act be declared irrational and deemed an infringement on domestic workers’ constitutional rights. The Respondents did not oppose this application, although initially the Respondents were opposed to or rather concerned regarding the order in respect of retrospectivity as it might negatively impact the cashflow of the fund. This argument was however later abandoned.
The Constitutional Court, upheld the High Court’s order and confirmed the order of constitutional invalidity, ordering further that it would be of retrospective effect from 27 April 1994. Importantly it held that the exclusion of domestic workers from the definition of employers in the Act constitutes a direct infringement of the rights to access to social security, equality and dignity.
The Constitutional Court held further that the exclusion of the domestic workers from this Act and the failure of the legislature to accommodate inclusion, whilst available resources are readily available, is unreasonable and constitutes a direct infringement of section 27(1)(c) and (2) of the Constitution, which states:
“(1) Everyone has the right to have access to-
(c) social security, including, they are unable to support themselves and their dependants, appropriate social assistance;
(2) The state must take reasonable legislative steps and other measures, within its available resources, to achieve the progressive realisation of each of these rights.”
A differentiation of this nature is not only arbitrary and inconsistent with the premise of our foundational constitutional values but is contrary to equal protection of the law under section 9 of the Constitution. The Constitutional Court, also extended the understanding of what equal protection under section 9 means.
The Constitutional Court recognised that domestic work in South Africa is predominantly performed by black women within a particular historical context, further recognising that an intersectional approach would be the best way to understand the discrimination and the impact of the exclusion. In other words, the Constitutional Court adopted an approach that recognises the discrimination as being on the basis of the intersecting grounds of race, sex, gender and socio-economic status and the harm(s) as being the complex harms that intersectional discrimination occasions.
The judgement further elaborated on how domestic workers are viewed in South Africa, finding that the exclusion occasioned by the Act perpetuates (i) the under-valuing of domestic workers and (ii) their work as not being regarded as real work.
In light of the above, the following is important to note when employing a domestic worker.
Domestic workers who work 5-days a week should work no more than 45 hours a week, and no more than 9 hours a day. Alternatively, if your domestic worker works more than 5 days a week, they should not be working more than 8 hours a day.
- Overtime: They should not work more than 15 hours overtime per week or more than 3 hours overtime a day.
- Public holidays and Sundays: Should you require your domestic worker to work on a public holiday or on a Sunday, they should receive double their salary.
- Deductions: Employers may deduct 10% of an employee’s salary for accommodation if the domestic worker lives on their employer’s property, provided that the accommodation falls within the legislated standard and this has been agreed between the parties to the employment contract.
- Notice: Employers must give employees one week notice of termination of employment if the domestic worker has been employed for 6 months or less and four weeks’ notice if employed for more than six months;
- Severance payment: Domestic workers are entitled to one week severance pay for each year of service;
- All employers must register their Domestic worker for the Unemployment Insurance Fund and should ensure that they enter into a contract of employment;
- Sick leave: During the first 6 months of employment, they are entitled to 1 days paid sick leave for every 26 days worked. Moreover, during a 3 year and/or 36 months sick leave cycle an employee is entitled to paid sick leave that would amount to the number of days the employee would normally work during a period of 6 weeks
- COIDA: Domestic workers qualify for COIDA claims if injured on or during the course and scope of their employment.
- Termination of Employment: Should you wish to terminate the employment of your domestic worker; you need to have a fair reason for doing so and follow a fair procedure.
Author: Ashleigh Le Fleur
Candidate Attorney at Malcolm Lyons and Brivik Attorneys Inc.
Malcolm Lyons and Brivik Attorneys are leading experts in the field of labour law in South Africa. To discuss whether you have a case, contact our offices below:
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