COIDA: EXCLUSION OF DOMESTIC WORKERS INVALID: Employers’ contributions cannot be backdated
COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT
EXCLUSION OF DOMESTIC WORKERS INVALID
Employers’ contributions cannot be backdated
by Jaco Swart
The Constitutional Court, on 19 November 2020, confirmed an earlier judgment of the High Court which declared the exclusion of domestic workers from the definition of an “employee” for purposes of the Compensation for Occupational Injuries and Diseases Act (COIDA), as being unconstitutional and invalid.
Effectively, any domestic worker who suffered an injury on duty after 27 April 1994 will now be able to claim for such an injury from the Workman Compensation Fund.
The Department of Employment and Labour issued a media statement indicating that it will amend the Act in accordance with the judgment of the Court and will be implementing processes to deal with the claims and contributions for domestic workers.
The Department, inter alia, also stated that it will issue a directive on how employers of domestic workers are to contribute to the Fund and on how the Department will deal with the retrospective aspect in as far as contributions are concerned.
It is our view that, although the Court confirmed that the order of invalidity operates with retrospective effect from 27 April 1994 when the interim constitution took effect, the judgment cannot imply that employers will be liable for retrospective contributions for domestic workers.
Jaco Swart is the National Manager of the National Employers’ Association of South Africa (NEASA).