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Those who terminated domestic workers’ services before lockdown could end up facing legal action


Your domestic worker’s rights during lockdown.

Many South African householders are continuing to pay their domestic workers during the lockdown, even though they are not working. 

But people who terminated the services of their workers before the lockdown came into force, might have done so unlawfully and could end up facing legal action.

Bernard Reisner, of Cape Labour and Industrial Consultants, says there are cases of people who ended the services of their domestic workers before the lockdown in a bid to avoid contracting the virus.

These laid-off workers “have the right to declare a labour dispute at the Commission for Conciliation Mediation and Arbitration (CCMA) on the grounds of unfair discrimination”, if they are not re-employed after the lockdown.

“There’ve been recommendations

that domestic workers be paid in full to cushion the financial hardships they will endure during the lockdown, but I doubt whether many employers are heeding this call. Employers should give employees letters to avoid a dispute of facts,” Reisner says.

“However, employers have the right to apply the principle of no work, no pay; grant the domestic worker paid annual leave and complete a UI-19 form, which allows them to register their workers so that they can claim Unemployment Insurance Fund (UIF) benefits,” he says. Many employers have failed to complete the UI-19 form or even pay UIF contributions, which will make it harder for workers to claim benefits.

Reisner says that more than

1 million domestic workers will be affected, and he doubts that the UIF system will be able to cope with the expected flood of applications.

“Many domestic workers do not have access to the internet and even if they did, the system has many glitches. The problem will worsen when people apply directly to the Labour Department’s offices.”

Michael Bagraim of Bagraim Attorneys and deputy DA spokesperson for employment and labour, says the law on UIF benefits is not entirely clear.

“The government is allowing an application to the UIF for R3500 a month for each employee. The reality is that we don’t have proper systems in place for the pandemic. I did officially ask the UIF commissioner at an employment and labour portfolio committee meeting six weeks ago, whether he was ready for the pandemic, and he said he was. They do have enough finances, but I don’t believe they have the systems in place,” says Bagraim.

There is no government relief for workers in the informal sector who don’t contribute to the UIF.

“There is a mechanism for small businesses, but trying to access this mechanism has been impossible. The Department of Employment and Labour systems are inundated, and it is my feeling it is going to take months to get itself right. This means that people who are waiting for their payments at the end of April might not get them,” Bagraim says.

Bagraim points out that we are governed by labour legislation. “The Basic Conditions of Employment Act (BCEA) says, in a nutshell, that employees are not entitled to be paid during lockdown if they are not working. It also says the employer may unilaterally place the employee on paid leave, if it is available.”

A Cape Town woman who has been working for eight years in a service industry that has been one of the hardest hit by Covid-19 was paid for March, but was told at short notice that she would not be paid for three months. She says she is continuing to service her clients, without pay, working from home.

“If things improve, the employer will relook the situation,” she says. Meanwhile, she has applied to the UIF hoping to get relief.

Bagraim said the BCEA has not been suspended or overridden by any of the regulations or statements made by the president or the various ministries.

“Many employers have chosen to structure hybrid payment solutions to ensure that their employees are protected in this time.

“Employees who are expected to work because they belong to an essential service would be paid their normal wages and salaries. Many employees have asked whether they are entitled to a sort of danger pay or overtime payment. There is no right to danger pay, nor to overtime payment if they are not working overtime,” Bagraim says.


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