All workers have certain rights under the Constitution of South Africa and labour regulations. This is a summary of domestic workers’ rights in South Africa. A domestic worker is a gardener, driver or person who looks after children, the aged, sick, frail or disabled in a private household, but not on a farm.
1. Notice period and termination of employment
If you who wish to end an employment contract, you must give notice in writing (unless you are illiterate). If your employer wishes to end your employment contract, he/she must give notice to you in writing. Notice must be given as follows:
· one week in advance – if employed for 6 months or less
· four weeks in advance – if employed for more than 6 months
The employer must verbally explain the notice to the domestic worker if he/she is not able to understand it in written form.
2. What rights do I have after notice is given?
After notice is given, domestic workers have the following rights:
· If you live in accommodation provided by the employer then the employer must give you one month’s notice to leave the accommodation or until the contract of employment could lawfully have been terminated.
· All money that is owing to you (for example, wages, allowances, pro rata leave, paid time-off not taken, and so on) must be paid.
3. When can a domestic worker’s contract of employment be terminated?
A domestic worker’s contract of employment may not be terminated unless a valid and fair reason exists and a fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure, the employee can refer the case to the CCMA. (You can find full instructions by here: http://www.ccma.org.za/Display.asp?L1=32&L2=9.) This should be done within thirty days of being dismissed.
If a domestic worker cannot return to work because of a disability, the employer must investigate the nature of the disability and decide whether or not it is permanent or temporary. The employer must try to change or adapt the duties of the employee to accommodate the employee as far as possible. But, if it is not possible for the employer to change or adapt the duties of the domestic employee then the employer can terminate his/her services.
An employer who has to dismiss an employee due to a change in his/her economic, technological, or structural set-up, called operational requirements in the determination, is responsible for severance pay to the employee.
4. Minimum wage
All employers of domestic workers throughout South Africa have to pay their employees a minimum wage. There are two rates for the minimum wage which are based on:
- where the domestic employee works
- the number of hours worked per week
You can find up-to-date information on the current minimum wage here:
5. Hours of work
(a) Normal hours (excluding overtime)
A domestic worker cannot work more than:
- 45 hours per week
- 9 hours per day for a five day work week
- 8 hours a day for a six day work week
Overtime is voluntary and a domestic worker may not work –
- more than 15 hours overtime per week, and
- more than 12 hours on any day, including overtime.
Overtime is paid at one and a half times the employee’s normal wage or an employee may agree to take paid time off.
(c) Daily and weekly rest periods
A domestic worker is entitled to a daily rest period of 12 consecutive hours (hours in a row) and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed.
Standby means any period between 8 p.m. and 6 a.m. when a domestic worker is needed to be at the workplace and is allowed to rest or sleep but must be available to work if necessary.
This may only be done if you and your employer have agreed in writing and not more than 5 times per month. An allowance of at least R20 per shift must be paid for standby.
An employer must pay a domestic worker for any time worked in excess of three hours during any period of stand-by. The employee must be paid at the normal overtime rate or given paid time-off.
(e) Night work
- Night work means work performed after 6 p.m. and before 6.a.m.
- Night work is allowed only if the domestic employee has agreed to this in writing. The employee must be compensated by an allowance of at least 10% of the ordinary daily wage.
6. Meal intervals
A domestic worker is entitled to a one-hour break for a meal after five hours continuous work. The interval may be reduced to 30 minutes by agreement. When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If an employee has to work through his or her meal interval, then they must be paid for this.
7. Work on Sundays
Work on Sundays is voluntary and a domestic employee cannot be forced to work on a Sunday.
A domestic worker who works on a Sunday must be paid double the daily wage.
If the employee ordinarily works on a Sunday he/she should be paid one and a half times the wage for every hour worked. If both the employer and employee agree, the employee can be paid by giving her / him time off of one and a half hours off for each overtime hour worked.
8. Public Holidays
Domestic workers are entitled to all the public holidays in the Public Holidays Act but the they may also agree to other public holidays. Work on a public holiday is voluntary which means a domestic employee may not be forced to work.
The official public holidays are:
New Years day
Human rights day
National Woman’s Day
Day of Reconciliation
Day of Goodwill
Where the government declares an official public holiday at any other time then this must be granted. The days can be exchanged for any other day by agreement.
If the employee works on a public holiday he/she must be paid double the normal days wage.
9. Annual leave
Full time domestic workers are entitled to 3 weeks leave per year. If the employer and employees agree they can take leave as follows: 1 day for every 17 days worked or one hour for every 17 hours worked.
The leave must be given not later than 6 months after completing 12 months of employment with the same employer. The leave may not be given at the same time as sick leave, nor at the same time as a period of notice to terminate work.
10. Sick leave
During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
During a sick leave cycle of 36 months, an employee is entitled to paid sick leave that is equal to the number of days the employee would normally work during a period of 6 weeks.
The employer does not have to pay an employee if the employee has been absent from work:
- for more than two days in a row, or
- on more than two occasions during an 8-week period
and does not produce a medical certificate stating that he/she was too sick or injured to work. The certificate can be from a doctor, a traditional healer or a qualified nurse.
11. Maternity leave
A domestic worker is entitled to up to 4 consecutive months maternity leave. The employer does not have to pay the employee for the period for which she is off work due to her pregnancy. However the employer and employee may agree together that the employee will receive part of her whole wage for the time that she is off. The mother can also claim maternity benefits from UIF for the full four months.
12. Family responsibility leave
Domestic workers who have been employed for longer than 4 months and for at least 4 days a week are entitled to take 3 days paid family responsibility leave during each leave cycle in the following circumstances:
- when the employee’s child is born
- when the employee’s child is sick
- if one of the following people dies: the employee’s husband / wife / life partner / parent /adoptive parent / grandparent/ child/adopted child/ grandchild/ brother or sister
13. Deduction from the remuneration
An employer is not allowed to deduct any monies from the employee’s wages without his/her written permission.
There can be a deduction of no more than 10% for accommodation if the accommodation:
- is weatherproof and generally kept in good condition;
- has at least one window and door, which can be locked;
- has a toilet and bath or shower, if the domestic worker does not have access to any other bathroom.
14. Prohibition of employment
No one under the age of 15 can be required or permitted to work.
15. General administrative requirements
Employers must comply with the following administrative processes:
- Provide employees with a written contract of employment
- Payment must be made in a sealed envelope, by cash or cheque, and must include a detailed payslip. The employer must keep copies of these payslips for 3 years.