Domestic work as a profession is undervalued and unrecognised, even though domestic workers play a central role in our society, but a recent ruling promises to help restore dignity to the role.
The Constitutional Court has ruled that domestic workers in private households are now going to be covered for claims by the provisions of the Compensation for Occupational Injuries and Diseases Act (COIDA), and damages can be claimed for work-related injuries, illnesses and death.
Domestic workers include gardeners, a person employed by a household to drive a motor vehicle, persons who take care of children, the aged, frail or disabled.
The Constitutional Court ruling on Thursday, 19 November 2020, declaring provisions of the Act to be unconstitutional, ruled that the order will apply retrospectively to 27 April 1994, allowing domestic workers previously injured and their families and dependents to lodge claims.
These retrospective claims must be claimed between 19 November 2020 and 19 November 2021.
A violation of the human right of dignity
The matter before the court had its roots in an application launched by Sylvia Mahlangu, the daughter and sole dependent of Maria Mahlangu who drowned in her employer's swimming pool in Pretoria in March 2020.
It was alleged that Maria, who was partially blind, was washing windows next to the pool when she slipped on the step ladder and fell into the unfenced pool. She could not swim and drowned. Her body was discovered hours later by her employer.
Sylvia Mahlangu was left financially devastated. She approached the Department of Labour to claim compensation but was turned away.
With the assistance of The South Africa Domestic Service and Allied Workers Union, she approached the Socio-Economic Rights Institute (SERI), which launched an application in the North Gauteng High Court, arguing that the specific exclusion of domestic workers in COIDA was unconstitutional in that it offended rights to equality and was a violation of the human right of dignity.
This victory to include domestic workers in COIDA has been an on-going battle for years. From 27 April 1994 to 19 November 2020, domestic workers had no protection in terms of COIDA.
A moral duty
Before the Constitutional Court Ruling, if they were injured and/or contracted a disease or passed away whilst on duty, employers were not legally obliged to pay them and the principle no work no pay applied.
Employers shirked their moral duty to compensate the domestic workers as they were not legally obliged to pay them. They could either go to State Hospitals and/or State Clinics to seek medical treatment.
A minority of employers had private household insurance that protected their domestic workers, in cases of contracting injuries, diseases or passing away whilst on duty.
The Department of Employment and Labour are in the process of embarking on an educational campaign, to empower domestic workers to understand their rights, in terms of their recent inclusion in terms of COIDA.
Copies of the Government Gazette, Vol. 669 dated 10 March 2021, No. 44250 can be obtained by emailing email@example.com. Thereto, one can also obtain a document setting out how much employers are required to pay COIDA per annum.
Submitted to Parent24 by Cape Labour and Industrial Consultants
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