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Is my domestic worker legal?

One of the most frequently asked questions in the area of labour employment is simply “Is my domestic worker legal?’’ This generally emanates from the fact that many employers of domestic workers are unfamiliar with the law surrounding such employment, but as the saying goes ‘’ignorance is bliss– but ignorance of the law is no excuse!’’ It is better, therefore, to be well versed in a few facts about what the employer of any domestic worker needs to know about and implement.

Common areas of ignorance 

The 2 primary areas of ignorance are a) whether the domestic worker, who only works, for example, once or twice a week without a contract is legal – and b) is around the hiring of foreign nationals who may be illegal immigrants, which is common in our country.

LabourExcel’s division LE Consult, experts in legal matters surrounding the employment of domestic workers (amongst many other things) have this to say: “Most Domestic Employers employ a worker for their home or garden under the guise of a so-called casual or char, not realising that in doing so the worker might be deemed a permanent employee in terms of South African Labour Law.”

“In terms of SA law’’, “a casual is a person deemed to work less than 24 hours for an employer in a single month. Therefore, if your domestic works once a week and there is no contract stipulating otherwise the employee will be an implied permanent employee entitled to the same full benefits of other permanent employees, like leave etc.”

The bottom line is that many employers of domestic workers are not compliant with the law and if they do transgress the laws that protect domestic workers they can be in for hefty fines and pay-outs in the case of a dispute with the worker.

Regarding the hiring of foreign nationals, there is no issue if they are legally in the country, just ensure you have a valid work permit or Asylum papers legally permitting the person to enter, exit and work in the Republic.

Hiring illegal immigrants, on the other hand, is strictly against the law and the interesting thing is that even illegal immigrants, according to LE Consult, have labour law protective rights and employers must ensure they follow correct procedures when wanting to make any changes to the employment relationship.

Six solid steps to ensure safe, compliant domestic worker employment.

  1. Implement a contract of employment from the outset to ensure the relationship is governed correctly and in accordance with the parties intended terms
  2. Make sure all your actions are in line with the requirements of the BCEA and Domestic Worker Sectorial determination
  3. Ensure that payments are in line with the National Minimum Wage requirements for Domestic Workers
  4. Ensure the Domestic is a citizen or a legal foreign national permitted to work within the republic.
  5. Register the worker for benefits in terms of the Unemployment Insurance Fund and the Workman’s Compensation Fund.
  6. Finally, and most importantly, do not ever implement any changes to the contracted or implied terms without seeking the advice of a Labour Law specialist like – LE Consult.

The Experts in all Labour matters

LE Consult specialises in offering a variety of Labour Law and HR Solutions and their people pride themselves on offering a professional experience whilst staying true to their core values of building relationships, excellence, innovation, consistency, and loyalty.

Whether you are a private individual asking, “Is my domestic worker legal?” or a corporate entity with large scale labour issues to manage and constantly deal with, LE Consult are the right people to talk to. 

Stay safe and stay compliant!

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