A new High Court decision could have a major impact on the rights of domestic workers in South Africa, as they will be eligible to claim from the compensation fund if they are injured, contract a disease or die at their place of work.
On Thursday (23 May), the Pretoria High Court found that the exclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act (COIDA) is unconstitutional.
The issue surrounded the death of a domestic worker who died at her employer’s home during the course of her employment.
It is alleged that the domestic worker, who was partially blind, was washing the top windows outside a bedroom located next to the pool when she slipped from the step ladder on which she was standing and fell into the pool – which was unfenced and uncovered at the time.
The employee could not swim and drowned. Her body was discovered hours later by her employer, who had been present in the home at the time of the incident. Her daughter later approached the Department of Labour to inquire about getting compensation for the death of her mother.
She was informed by the Department of Labour that while compensation and unemployment insurance benefits are ordinarily covered by COIDA, she did not qualify for either as domestic workers are not considered ’employees’ under the act.
The Socio-Economic Rights Institute of South Africa (SERI) brought an application on behalf of the worker to compel the Department of Labour to amend section 1 of COIDA to include domestic workers and to put effective enforcement mechanisms in place to ensure that employers comply with COIDA and other relevant labour legislation.
“In its ruling, the Pretoria High Court declared section 1 of COIDA unconstitutional for intentionally excluding domestic workers working in the home from its definition of ’employees’,” SERI said.
“SERI will further be arguing that the declaration of invalidity must be applied retrospectively to provide relief to our client who brought the application, or other domestic workers who were injured or died at work prior to the granting of the order.”
While the High Court judgement now sets a precedent for domestic workers, the Department of Labour has also been pushing for formal rule changes under the COIDA.
Proposed amendments were published at the end of 2018, and aim to further protect domestic workers who are injured at work according to Johan Botes, a partner at Baker Mckenzie.
“Domestic employees may benefit from the Compensation Fund if they are injured on duty (i.e. disablement, diseases or death) and may, in addition to compensation, receive reasonable medical aid expenses arising from such injury for a period of two years (or longer in certain situations),” he said.
“Previously, domestic employees would only be able to claim against the Unemployment Insurance Fund and perhaps a civil claim against the employer.
“For employers, the proposed amendments mean that the Compensation Commissioner steps into the shoes of the employer where a domestic employee is injured on duty”.