By Fadia Arnold, Senior Associate Attorney, Schoemanlaw Incorporated

Since the nationwide lockdown due to the COVID-19 pandemic was announced, multi-million-rand industries that were hardest hit such as the retail, restaurant, tourism and hospitality sectors  have been at the center of citizens’ concerns, constant news updates, government relief announcements and the like. Indeed, as a nation we are feeling the unprecedented trying times and the effects on those sectors. That said, is anyone talking about the plight of Domestic Workers during this period? I discussed the plight of the Domestic Workers in a round table interview on Radio 2000 this week with the President of the United Domestic Workers of South Africa (UDWOSA), Pinky Mashiane (hereinafter referred to as “Mashiane”).

What are Domestic Workers’ rights during the lock down period?

If your domestic worker is not with you in your homes during the lock down and being paid, which is the minority situation according to Mashiane, they are not able to work remotely and they fall outside of the essential services list and accordingly are required to stay at home. By law, an Employer’s duty to pay an Employee arises by virtue of the Employee’s ability to tender their employment services. As a consequence of the national lockdown, Domestic Workers are not able to tender their services and, in these circumstances,there is no legal obligation to pay the Domestic Worker. Indeed, some Employers have been gracious enough to pay their Domestic Workers during this period or utilize annual leave as an alternative or simply help out with a partial ex gratia payment.

What is an Ex Gratiapayment?

An ex gratia payment is a payment made by an Employer where there is no contractual obligation to do so. It is derived from the Latin language and means “out of kindness”. In simple terms, it literally means a voluntary payment or a gift. One would imagine that those Employers who are lucky enough to have retained employment during the lock down thus far, would be so kind as to extend an ex gratiakindness to their Domestic Worker. According to Mashiane, many Domestic Workers, some working for many years for their Employers have simply been placed on a no work no pay sentence, the length of which has become clear will not be certain anytime soon. Furthermore, many of these Domestic Workers have never been registered with the Unemployment Insurance Fund (hereinafter referred to as “the UIF”) by their Employers and accordingly their Employers have not been contributing to UIF resulting in the Domestic Worker having zero financial assistance during this period. It must be noted that Employers who do not register their Domestic Worker for UIF are acting unlawfully and should remedy this situation with immediate effect to avoid penalties imposed by the Department of Employment and Labour.

What are the rights of Employers during this period?

Despite the obvious plight of the Domestic Worker during this period, the law does state that Employers do have the right to institute no work no pay for this period. Neither the Employer or Employee is at fault in terms of the arrival of COVID-19 and its various consequences, one of which is that the employment contract between the Employer and the Domestic Worker can be seen as suspended for a supervening impossibility, an occurrence which is out of both parties control and therefore if no services are rendered the Employer has a right not to pay their Domestic Worker. The Employer also has the right to utilize annual leave credits during certain periods by agreement with the Employee as per the provisions of the Basic Conditions of Employment Act 75 of 1997. Regrettably, the Employer also has the right in terms of section 189 of the Labour Relations Act 66 of 1995 (hereinafter referred to as “the LRA”) to retrench the Domestic Worker for reasons related to operational requirements, which reason would be COVID-19 related if the Employer has for example also been retrenched or has been subjected to a salary deduction for the period of the lock down. If the Employer has or is intending on retrenching their Domestic Worker, then they need to follow the process as set out in the LRA to avoid claims of an unfair dismissal. Furthermore, to assist the Domestic Worker who has been retrenched, the Employer is by law required to issue their Domestic Worker with the relevant UI-19 documentation reflecting the retrenchment as the reason for the termination of the employment relationship so that their Domestic Worker can claim from the UIF as soon as reasonably possible.

According to Mashiane, Domestic Workers are one of the most vulnerable and exploited working sectors in South Africa. Accordingly it is our duty as a nation, currently under gigantean financial stress due to COVID-19 to protect our Employees as far as possible and ensure at the very least that they are registered with the UIF so they may claim for relief until the gradual phased uplifting of the lock down allows for re-employment or new employment for all Domestic Workers.

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