Is your domestic helper legally in the country? Know your risks
How many employers understand the legal implications surrounding the status of their domestic helper’s residence in the country?
Why is it important to know this? In the employment relationship, the residential status of your domestic helper has a direct impact on the structure of the contract of employment and your medium- to long-term planning.
RSA Citizens – a domestic helper who is South African citizen can enter into a long-term relationship with his/her employer and there is no reason why the working relationship cannot continue for an indefinite period. Such a relationship would probably only come to an end when the domestic worker goes on retirement, if nothing unexpected happens that calls for an early termination.
Foreigners – Domestic helpers who are foreigners in South Africa can be divided into the following categories:
- Persons with foreign passports but no work permits
- Persons with foreign passports who have a work permit
- Persons who are asylum seekers
The first step for employers is to ensure that they obtain copies of the domestic helpers’ identity documents or passports, work- or asylum permits.
All permits have expiry dates, and the employer needs to be aware of these. The holder of a Section 22 of the Refugee Act may work and study in South Africa for the duration of the permit. When granted asylum, an asylum seeker can apply for a Section 24 permit which allows such a person to remain for a specified period of two (2) years. This permit can be renewed and the person may work and study in South Africa while the permit is valid.
The domestic helper must be warned that their employment contract will become null and void should the permits not be timeously renewed.
When there is no work permit
Many employers of domestic helpers are under the mistaken impression that foreigners may be employed in private households under the radar of South African labour laws. This is very far from the truth, since all persons employed in South Africa are covered by all the labour laws of our country.
If you are employing a helper who does not have a legal work permit, it is important to note that you cannot summarily dismiss that person. The proper procedure should be followed when it comes to the termination of employment. If you apply the incorrect procedure, you could find yourself at the wrong end of a CCMA Award – even though the domestic helper does not have a valid work permit.
For more information, contact Albert van der Merwe, YesDomestic at firstname.lastname@example.org or call 079 697 4832