CONSTITUTIONAL COURT: DOMESTIC WORKERS WIN THE RIGHT TO COMPENSATION UNDER COIDA

By Lenja Dahms-Jansen Monday, November 23, 2020
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The Facts

In an important case recently handed down by the Constitutional Court, it was found that domestic workers employed in private households can now claim for work-related injuries, illness and death under the Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA or the Act).

The Judgment

The majority judgment, penned by Acting Justice Victor, held section 1(xix)(v) of the Act to be invalid and unconstitutional to the extent that it specifically excludes domestic workers from the definition of 'employee' and, as such, from the protection offered thereunder.

It was further contended that it deprives domestic workers of the benefits of social insurance, thereby violating their section 27(1)(c) right to social insurance, and that the exclusion also infringes domestic workers’ right to dignity under section 10 of the Constitution.

While the respondents conceded that section 1(xix)(v) of COIDA was, indeed, unconstitutional, they argued that it was unnecessary to challenge its unconstitutionality owing to amendments to the Act currently underway, which would ultimately include domestic workers within its ambit. The High Court that first heard the matter was unconvinced and held section 1(xix)(v) of the Act to be unconstitutional. The High Court ordered that the declaration of invalidity apply retrospectively from 24 April 1994 to provide relief to domestic workers and their dependants who were injured, fell ill, or died at work prior to the granting of the High Court’s order.

The application to the Constitutional Court sought confirmation of the High Court’s declaration of invalidity and it was unopposed by the respondents, who could source no justifiable purpose for the limitation to satisfy the requirements of section 36 of the Constitution. The majority of the Constitutional Court confirmed the order of retrospective invalidity made by the High Court, and ordered that it have immediate effect. Two separate concurring judgments reached the same conclusion on differing grounds.

'The exclusion of domestic workers from the protections under COIDA has resulted in a situation where domestic workers have for decades into our democracy, had to bear work-related injuries or death without compensation', Acting Justice Victor noted in this landmark judgment. A recent report by the International Labour Organisation estimates that there are approximately 1.1 million domestic employees working in South Africa in private households, and that the racial and gender distribution thereof is highly uneven, with the significant majority of these employees being classified as black and female.

Implications for Domestic Workers and their Employers

The judgment has important implications for domestic workers and their employers. Domestic workers employed in private households can now apply for compensation from the Compensation Fund (the Fund), and employers of domestic workers in private households will now need to register with the Compensation Commissioner and pay an annual assessment fee based on their domestic worker’s earnings. This fee may not be deducted from the employee’s wage or salary and, under section 87 of the Act, an employer may incur a penalty for failure to make contributions to the Fund. An employer’s failure to make contributions will not, however, negate the employee’s ability to claim from the Fund.