At its inception, the National Lockdown prevented all non-essential employees from going to work. This included domestic workers (including those who resided with their employers).[i] Care workers taking care of the sick, disabled, elderly or children were however able to continue working.
The level 4 Lockdown Regulations reduced these restrictions to some extent. The following domestic workers were entitled to work at level 4: (1) Live-in domestic workers and (2) domestic workers who cared for the sick, mentally ill, elderly, people with disabilities and children. Domestic workers falling outside of these two categories however remained precluded from working.
The level 3 Lockdown Regulations (effective from 1 June 2020 in various forms) further reduced the restrictions. Domestic workers were not referred to in the so-called ‘Specific Economic Exclusions List’ and consequently all domestic workers (including gardeners) were entitled to return to work with effect from that date. This remains the case in the level 2 and level 1 regulations respectively.
Some employers continued to pay their domestic workers while they were precluded from working by the Lockdown Regulations. Others elected not to pay their domestic workers at all (often because they too had been placed on lay-off by their own employers or because their businesses had shuttered, etc).
The legal basis for implementing no-work-no-pay has been the subject of a great deal of debate and dispute and will likely lead to litigation in due course.[ii]
In simple terms, it appears that the inability to work during the period of the hard lockdown can best be described as a form of temporary legal incapacity.[iii] The result of this is that employers could cease paying employees who were not legally entitled to work. The caveat, however, is that employers were required to consider alternatives and other options in order to lessen the impact on their employees before doing so.
The obvious alternative to not paying domestic workers who could not work because of the Regulations was to apply for the COVID-TERS benefit made available by the Department of Labour and Unemployment Insurance Fund. If a domestic worker was temporarily laid off but received COVID-TERS payments, then the employer was not under an obligation to pay his/her salary.
Employers were not however entitled to unilaterally place domestic workers on unpaid-lay off (especially in circumstances where COVID-TERS was not applied for). Domestic workers who were subjected to unilateral unpaid lay-offs could theoretically refer disputes to the CCMA and/or the Department of Labour on this basis (although such disputes would likely be late and require condonation).
It is noteworthy that the UIF COVID-TERS benefit was officially withdrawn on 15 October 2020 (save for in respect of the categories of employees discussed below) and there is no means for an employer to submit a retrospective claim for COVID-TERS benefits.
Given that since June 2020 there has been no prohibition on domestic workers returning to work, the Regulations no longer constitute a justification for a temporary lay-off and COVID-TERS benefits are no longer available, all domestic workers who tender their services must be paid.
If an
employer cannot afford a domestic worker because he/she has been similarly placed
on lay-off, on short time or otherwise had a reduction in pay, the retrenchment
procedure in Chapter 8 may be
considered.
[i] Given the confusion that reigned at the time, many employers who have so-called live-in domestic workers continued to have them work during this period
[ii] Some writers have suggested that ‘force-majeure’ constitutes a means to temporarily suspend payment in terms of a contract of employment. Others have suggested that impossibility of performance (so-called supervening impossibility) is the basis for no-work-no-pay. Still others have pointed to the exceptio non adimpleti contractus defence in common law which provides that a party to a reciprocal contract is not required to perform where the other party does not perform. Employers of domestic workers should not fret over legal technicalities, suffice it to say that where an employee does not work it is standard not to pay them.
[iii] See the excellent article by Neil Coetzer and Tanya Mulligan on the subject: https://www.chmlegal.co.za/incapacitated-by-the-lockdown/
