Do you understand the Basic Conditions of Employment?
Many South Africans employ domestic staff, but they often don’t fulfil their formal obligations as employers – like having an employee contract in place and properly recording annual leave and sick leave, as well as making the relevant contribution to the Unemployment Insurance Fund (UIF). This admin may seem onerous or irritating, but it protects both the employer and the employee – and in fact it is illegal not to have the proper paperwork and deductions in place.
The law regarding domestic workers is detailed in the Domestic Worker Act, and covers any staff that work in your home – including gardeners, cleaners, cooks, nannies and au pairs – whether they are employees or contractors. The law also covers employed foreign nationals and so the same conditions apply to any non-South-African employees.
We spoke to Ruth Kloppers, the owner of Help at Home, a domestic worker and nanny recruitment agency, about what you need to do when hiring a domestic employee or if you already employ someone but haven’t taken the necessary steps..
The minimum wage is reviewed in November each year. For 2018, the legal minimum for anyone in a large city or town, who works more than 27 hours per week is R13.05 per hour (a minimum of R2 545.22 per month for full-time employment). For an employee who works less than 27 hours per week, the minimum rate is R15.28 per hour.
However, Ruth stresses that while this is a legal minimum, it is not a market-related salary, and should only be used as a starting point for staff with no experience or training. “At present, we are seeing that experienced domestic workers that reside with employers are earning R3 500 per month or more, and ‘live out’ employees are looking for salaries of R4 000 and upwards.”
You are required to provide your employee with a payment slip every month.
Yes. Anyone who works more than the agreed working hours must be paid overtime. The act also makes it clear that normal working hours may not exceed 45 hours a week, and any hours worked over that time must be paid as overtime. There are two different types of overtime:
Normal working hours may not exceed 45 hours a week.
- Normal overtime: Any extra hours worked Monday to Saturday. These hours must be paid at 1.5 times the normal hourly pay. For example, if your domestic worker receives R15 per hour, normal overtime pay will be R15 x 1.5, which will be R22.50 per hour.
- Double pay overtime: Any extra hours that your domestic worker may work on Sundays and public holidays. For example, if your domestic worker gets paid R15 per hour, the overtime will be R15 x 2, which will be R30 per hour. It is important to note that you cannot force your domestic worker to work on Sundays and public holidays.
There are further restrictions on overtime requirements:
- No more than three hours of overtime may be worked on a normal nine-hour work day.
- No more than 15 hours of overtime may be worked in a week.
- If an employee is on standby after hours (available if needed but not actually on duty), they should be paid a standby allowance of at least R30 per hour.
- A one-hour lunch break is required after five hours of work, which is counted as a working hour in the 45-hour work week.
- Employees may not work seven days consecutively.
Any employee who works more than 27 hours per month must be registered for UIF. As an employer, you must register yourself with the Department of Labour to receive a contributor number, which you then use to make payments. Your domestic worker is then registered as your employee – as a beneficiary under your contributor number. A total of 2% of the employee’s salary must be paid to UIF each month – 1% has to be paid by the employer, and the other 1% may be deducted from the employee.
- Medical insurance, by mutual agreement.
- Savings, pension fund contributions or loans, by mutual agreement.
- Ordered account payment, if the employer has been ordered by the courts to deduct money from the employee to pay an outstanding account.
- Any amount greater than your employee’s earnings.
- Any amount to cover damage or breakages of household items including crockery, appliances or clothing.
- Meals provided during work times. You do not have to provide meals, but if you do, you cannot deduct for them.
- The cost of clothing used by your employee if they are required to wear a specific uniform.
- Work equipment, for instance brooms or lawnmowers.
Ruth explains the four types of leave that every employee is entitled to:
- Annual leave
Full-time employees who work from Monday to Friday are entitled to 15 working days of paid leave per year (earned at 1.25 days of leave for every month worked). Part-time employees are entitled to one day’s paid leave for every 17 days worked.
- Sick leave
Sick leave is calculated on a three-year cycle. Employees are entitled to 30 days of paid sick leave over three years. If, however, they use these 30 days in one year, any additional sick leave days must be taken as unpaid leave. In the same way, part-time employees are entitled to the number of days they would work in a six-week period, in a three-year cycle. So an employee who works one day a week is entitled to six sick leave days in a three-year cycle. You should request a doctor’s note for sick leave taken on either side of a public holiday or long weekend, or when your employee is off sick for longer than two days.
- Maternity leave
An employee may take up to four months of unpaid maternity leave and is not allowed to return to work for a minimum of six weeks after giving birth. As an employer, you are not legally obliged to pay a portion of their salary during maternity leave, but you may choose to. The employee is able to claim from UIF during this period.
- Family responsibility leave
An employee may take five paid days per year in the event of the serious illness or death of an immediate relative, such as a spouse, child, parent or sibling. Any family responsibility leave taken over and above these five days will be unpaid and may be deducted from the employee’s wages. This leave is usually taken consecutively (for instance so that the employee may arrange and attend a funeral). If a part-time employee requests repeated family responsibility leave, you are entitled to ask for an explanation and proof of the illness or death.
According to Ruth, when you employ a new domestic worker, you may write a probation period into the contract. The probation period cannot be longer than three months, and during this time, either party can terminate the employment with immediate effect, for any reasonable reason.
After the probation period has lapsed, if you wish to terminate your employee’s job, you will first have to issue three written warnings, which the employee must sign, and then hold a disciplinary hearing. In the disciplinary hearing, there must be one impartial person to hear both sides, and both parties are entitled to representation.
If the conclusion of the hearing is that dismissal can take place, and the employee has been with you for six months or less, you may terminate the employment with one week’s notice. For any period of over six months, you must provide four weeks’ notice. Live-in domestic workers may also stay on the premises for a month after termination, or the employer can pay for their accommodation elsewhere.
However, you may dismiss an employee outright for gross misconduct – which includes theft or endangering the life of your child. This is called summary dismissal, and no notice period is required.
If you retrench an employee due to a change in your financial or family situation, and you cannot find them alternative employment, you have to pay severance pay. You will have to pay one week’s pay for every 12 months of continuous service in addition to the months' notice. If the employee only worked part time, then you will have to pay for the number of days worked in a week, for every 12 months of continuous service.
Every domestic worker must have a signed employment contract by law. The contract cannot override the Basic Conditions of Employment or the Domestic Workers Act, but covers the specifics of your employment arrangement. It is still useful to cover all the basic conditions already mentioned here so that you and your employee can discuss and understand them. You should review the contract with your employee every year. It should contain:
- The full name and address of the employer
- The full name and occupation of the employee, and a brief description of the work that he or she will be doing
- The place of work
- The date of employment
- The domestic worker’s ordinary hours and days of work
- The domestic worker’s wage or rate and method and frequency of payment
- The rate of pay for overtime work
- Any other cash payments that the employee is entitled to
- Any deductions taken from wages
- The leave he or she is entitled to
- The notice period required to terminate employment, or the date of termination if the employment is for a specific period only.
Although working through all these requirements and writing up a contract can be time-consuming, it will save you a great deal of difficulty in the long term if a question or dispute arises. Employing a domestic worker is a business transaction like any other, and you and your employee will be far better protected if you have taken the appropriate legal steps from the outset.
Original article published on: 11th January 2016
Updated on: 1st March 2018