The Constitutional Court of South Africa has ruled that domestic workers who suffer injury or contract an illness while on duty at the private home of their employer may apply for compensation.
The inclusion of domestic workers in the Compensation for Occupational Injuries and Diseases (COIDA) fund, which has been hailed as a landmark ruling by the Commission for Gender Equality (CGE) and Women’s Legal Centre Trust (WLC), means that employers will need to register with the Compensation Commissioner.
The case stems from the death of Maria Mahlangu, a domestic worker who drowned while on duty at her employer’s private residence in 2012. Mahlangu’s daughter, Sylvia, was denied any form of compensation by the Department of Labour due to the domestic workers’ exclusion from COIDA.
On Thursday 19 November, the Constitutional Court ruled that dependants of domestic workers will, too, be able to claim from the Compensation Fund. Importantly, the order has been applied retrospectively from 1994, meaning that relief could be afforded to employees who suffered work-related injuries, illness or death with dependants claiming for the latter.
The Department of Labour and Compensation Commissioner are expected to provide clarity on the order’s retrospective application. In the meantime, the order has important implications for employers who will now need to comply with the COIDA amendments.
All employers, who employ one or more domestic workers, will need to register with the Compensation Fund by completing a W.as.2 form. These forms can be found on the website of the Department of Labour and at its offices. Once complete, with a copy of the employer’s ID attached, this form must be mailed or delivered to the Compensation Commissioner’s office.
The employer will then be allocated a Compensation Fund registration number.
A Return of Earnings (W.as.8) form, which assesses the employee’s salary and work-associated risks, will also need to be submitted on an annual basis. No funds can be deducted from the worker's earnings to contribute to the fund.
The annual assessment fee, which the employer must pay, is calculated at total worker’s pay divided by 100 multiplied by the assessment tariff.
The assessment tariff, which is effectively the amount of money to be paid into the Compensation Fund each month, is based on risks related to a particular type of work. There are over one hundred subclasses with individual assessment tariffs. These tariffs are reviewed on an annual basis and, with the recent Constitutional Court ruling, domestic workers operating in private households will need to be associated with a relevant subcategory.
Claims, submitted by either the employer or employee, need to be logged within 12 months after the injury, illness or death occurred. Compensation can include medical costs, temporary disability, permanent disability, and death benefits.
A Notice of Accident and Claim for Compensation form and Employer's Report of Accident form must be submitted to the Compensation Commissioner. In the case of injury or illness, a doctor will be tasked with completing a Medical Report in Respect of an Accident.
While the Compensation Commissioner will administer funds to the affected employee, the employer will need to pay for the first three months after the injury was sustained. The employer will be reimbursed by the Compensation Commissioner.
Employers who fail to register with the Compensation Commissioner or default on payment of assessment fees will be liable for fines or prosecution in the event of a workplace incident.