GUIDELINES WHEN HIRING A DOMESTIC EMPLOYEE

The law is clear regarding domestic workers and is detailed in the Basic Conditions of Employment Act and subsequent amendments. This Act covers any staff who work in your home, including gardeners, cleaners, cooks, nannies, and au pairs whether they are employees or contractors, South Africans, or foreign nationals.?

Based on this Act and other regulations such as the National Minimum Wage regulations, here are some guidelines so you know what you need to do when hiring a domestic employee or if you already employ someone but haven’t taken the necessary steps.

Wages

According to National Minimum Wage regulations, from 1 March 2022 domestic workers need to earn a minimum of R23.19 an hour.

A domestic worker who works eight hours a day, five days a week (40 hours) should be earning a minimum of R3 710.40 a month. The minimum wage is reviewed once a year.

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.

You are required to provide your employee with a payment slip every month showing hours worked, wage rate, any deductions and overtime pay.

Overtime

Anyone who works more than the agreed working hours, per their employment contract, must be paid overtime. There are two different types of overtime:?

• 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 R23.19 per hour, normal overtime pay will be R23.19 x 1.5, which will be R34.79 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 is paid R23.19 per hour, the overtime will be R23.19 x 2, which will be R46.38 per hour. It is important to note that you cannot force your domestic worker to work on Sundays and public holidays.
• No more than three hours of overtime may be worked on a normal nine-hour workday.
• 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 R46.38 per hour.
• Employees may not work seven days consecutively.

Wage deductions

Any employee who works more than 27 hours per month must be registered for UIF. So, if your domestic worker works more than 27 hours a month for you, you must register as a contributor with UIF and register your domestic worker as your employee, also known as a beneficiary. You will receive a contributor number when you register that you must use when you make UIF payments. You can register online at the Department of Employment and Labour.

A total of 2% of the employee’s salary must be paid to UIF each month. One percent has to be paid by the employer, and the other 1% may be deducted from the employee’s wages.

The following deductions are permitted but optional:

• Medical insurance, by mutual agreement.
• Savings, pension fund contributions or loans, by mutual agreement.
• Garnishee order deductions, if the employer has been ordered by the courts to deduct money from the employee to pay an outstanding account.

You may NOT deduct the following:?

• A total amount of more than 25% of your employee’s normal 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.

The Compensation Fund

Domestic workers are now covered by the Compensation Fund, and you need to register as an employer and submit annual returns.

Annual leave

Full-time employees who work from Monday to Friday are entitled to 21 consecutive days leave, which is 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 (six weeks) 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 can claim from UIF during this period.

Family responsibility leave.

An employee may take three 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 three 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.

Parental leave and adoptive parental leave

Parents, other than the birth mother, are entitled to ten consecutive days’ parental leave from the birth or adoption day of their child. So, fathers can take 10 days after their child is born and if a child is adopted both parents are entitled to 10 consecutive days after the date of adoption, unless one parent has taken adoptive parental leave. Adoptive parental leave is 10 consecutive weeks leave and one parent may take this leave. The other parent qualifies for 10 days’ parental leave. Parental leave and adoptive parental leave are unpaid, so UIF can be applied for during this time.

Termination

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.

Employment contract

Every domestic worker must have a signed employment contract by law. The contract cannot override the Basic Conditions of Employment and covers the specifics of your employment arrangement. It is 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 description of the work they will be doing.
• The place of work
• The date of employment
• The domestic worker’s agreed working hours and days of work. It is important to note that agreed working hours may not exceed 45 hours a week, including a daily one-hour lunch break that must be taken after five hours 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 the employee is entitled to.
• Any deductions taken from wages.
• The leave to which they are entitled.
• The notice period required to terminate employment, or the date of termination if the employment is for a specific period only.
• If they will be monitored using video footage or nanny cams.

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 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.