What happens to a Domestic Worker when the Employer passes away?
Many South Africans employ Domestic Workers but not many know what happens to the employment relationship upon death of the employer nor the cost implications thereof to their Estate.
The Basic Conditions of Employment Act 75 of 1997 defines a domestic worker as an employee whose job is wholly or mainly to do domestic work in a dwelling that a household uses mainly to live in. Gardeners, people employed as drivers of motor vehicles, and people who take care of children, the aged, the sick, and the disabled also fall within the Act’s definition of domestic workers.
In most instances, upon the death of the Employer, the domestic worker’s services are no longer required, which results in a retrenchment.
A retrenchment is a form of dismissal due to no fault of the employee.
In a deceased estate, it becomes the duty of the executor to proceed with the retrenchment of the domestic worker.
The Labour Relations Act 66 of 1995 sets out the procedure for retrenchment.
Prior to the retrenchment, there should be a discussion between the Executor and the Domestic Worker, whereby the Executor sets out the reasons for the retrenchment.
Thereafter, the following items will need to be attended to by the Executor:
Severance Pay- must be equal to at least one week’s full pay for each completed year of continuous service with the employer, unless contractually agreed otherwise.
Outstanding leave to be paid – the executor will have to determine the number of outstanding leave days, upon discussions with the domestic worker.
Notice Period – prior to the retrenchment, the executor will need to give notice to the Domestic worker.
If the Domestic Worker has worked less than six months – 1 week notice;
If the Domestic Worker has worked six months of more – 4 weeks’ notice
Otherwise an agreement may be reached that the domestic worker does not need to work out the notice period and that they may be paid instead of the notice.
Upon the retrenchment, the executor must ensure that the domestic worker is paid all money owed to him/her, being wages, an allowance, etc.
What may seem like a simple exercise, can turn out to be quite detailed and it is
“A Nice to Know” for heirs, as well as Domestic Workers.
