The Constitutional Court, in the case of Mahlangu v Minister of Labour , has declared parts of the Compensation for Occupational Injuries and Diseases Act (COIDA) unconstitutional in their exclusion of domestic workers from the definition of ‘employee’. The existing statutory provisions specifically exclude domestic employees employed in private households from being able to claim in terms of COIDA.
The Court found that these provisions precluding domestic workers and their dependants from claiming for work-related injuries, disablement or death was an unjustifiable violation of domestic workers’ rights, as it did not afford equal access to social security protection. These provisions further infringed upon domestic workers’ rights to equality and dignity as enshrined in the Constitution.
Of further importance is that the Court has not only opened the way for future claims but also claims which would have arisen in the past. This is because the Court’s decision is retrospective in effect from the date of 27 April 1994.
It was stated in the judgement that the court hoped the decision would “… contribute towards the amelioration of systemic disadvantage suffered [by domestic workers] and contribute to breaking the cycle of poverty they suffer”.
Employers, therefore, need to ensure that they are compliant not only regarding the Unemployment Insurance Fund (UIF) but will also need to register for and pay towards the Compensation Fund to ensure their domestic employee(s) are covered.
Employers may not, however, deduct this fee from their employee’s wage or salary, and may further be penalised for failing to make contributions to Compensation Fund. A failure to do so will not, however, preclude an employee from claiming.