Domestic workers: Now able to claim for injuries on duty

For a long time, the Compensation for Occupational Injuries and Diseases Act, better known as COIDA, has provided compensation to employees who were injured on duty or contracted diseases or illnesses caused by the workplace. However, the Act explicitly excluded certain employees from its scope of operation, amongst others, domestic workers in private households. Dependents of deceased domestic workers, who died while on duty, were left without a leg to stand on in terms of compensation from the Compensation Fund. Fortunately, this has now changed.

The Compensation for Occupational Injuries and Diseases Act (“the Act”) aims to provide compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment. It also aims to provide compensation for death resulting from such injuries or diseases. However, this was not the case for select groups that were specifically excluded in terms of the Act. Including domestic workers working in private households.

Those individuals that were specifically excluded from claiming compensation in terms of the Act were:

1. A person performing military service or undergoing such training and is not a member of the Permanent Force of the South African Defence Force (“SADF”);
2. A member of the Permanent Force of the SADF while on service in the defence of the Republic;
3. A member of the South African Police Force (“SAPF”) on service in the defence of the Republic;
4. A person who is contracted for the carrying out of work who then engages other persons to perform such work; and
5. A domestic employee employed as such in a private household.

Practically, this meant that if a domestic worker employed in a private household, sustained an injury or died on duty, he/she or his/her dependents could not claim compensation in terms of the Act. This also meant that employers who employed such domestic workers had no obligation to contribute to the Compensation Fund.

The above-mentioned will soon be drastically changed as the High Court in Pretoria announced that domestic workers are now eligible to claim from the Compensation Fund if they were injured or contracted a disease at their place of work. The same applies should a domestic worker die while on duty; – the family of the domestic worker would then be allowed to claim.

The decision in the Pretoria High Court arose from a case in which a domestic worker drowned in her employer’s swimming pool during the course of her duties. When her dependent daughter approached the Department of Labour, she was informed that she was not allowed to claim in terms of the Act, as domestic workers were not included in the definition of an “employee”. This newly found right of domestic workers to claim from the Compensation Fund will now see domestic workers and their dependents enjoying the full protection the Act has to offer.

Employers will now have to pay into the Compensation Fund once a month and will not be allowed to deduct money from the workers’ wages for this. There are certain instances where the Compensation Fund will not provide payment:

1. No payment will be made for claims which are made more than 12 months after the accident or death, or more than 12 months after the disease is diagnosed;
2. No payment is made if the workers’ own misconduct caused the accident unless the worker was seriously disabled or died from the accident; and
3. There may be no payment if the worker unreasonably refuses to have medical treatment, for as long as the worker refuses.

Compensation is paid to employees who get injured at work or for diseases caused by work. There are four main types of compensation payments. These are:

1. Temporary disability (the worker eventually recovers from the injury or illness);
2. Permanent disability (the worker never fully recovers);
3. Death; and
4. Medical expenses.

Compensation is calculated as a percentage (%) of the wage the worker was earning at the time of the disease or injury’s diagnosis. If the employee is unemployed by the time a disease is diagnosed, the wage they would have been earning must be calculated. The Fund does not pay for pain and suffering, only for the loss of movement or use of the body.

The Act came under scrutiny towards the end of 2018 and amendments were proposed to provide more inclusive legislation. The decision in the Pretoria High Court has fast-tracked the amendments which will undoubtedly make huge strides for domestic workers in private households.

Reference List:

• Compensation for Occupational Injuries and Diseases 130 of 1993;
• The South African Labour Guide
• The Business Insider, 24 May 2019.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)