On 8 April 2021, SERI addressed a letter to the Compensation Commissioner on the subject of retrospective claims from domestic workers injured at the workplace as far back as 27 April 1994. The main concern of the letter was the cut-off date for submitting retrospective claims, 20 November 2021, as published by the Compensation Commissioner in the Government Gazette on 10 March 2021. As South Africa celebrates workers in the month of May, SERI wishes to highlight a potential challenge affecting one of the country’s most vulnerable groups of workers.
Domestic workers have been included in the Compensation for Occupational Injuries and Diseases Act (COIDA) since 19 November 2020, when the Constitutional Court of South Africa handed down a judgment in the Mahlangu v Minister of Labour matter declaring the exclusion of domestic workers from the definition of “employee” in section (xix)(v) of COIDA as unconstitutional. The Court also ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994, which means that domestic workers who have experienced work-related injuries, diseases or death as far back as 27 April 1994, or their dependents, are able to submit claims. Acting in the interest of Sylvia Mahlangu, the first applicant in Mahlangu, SERI submitted a retrospective claim for compensation for the workplace death of her mother which occurred on 31 March 2012.
In light of the Constitutional Court judgment, on 10 March 2021 the Compensation Commissioner published in the Government Gazette No. 44250 a “Notice on the Registration of Domestic Worker Employers in terms of Section 80 of the Compensation for Occupational Injuries and Diseases Act as Amended”. In terms of this notice, retrospective claims arising on or after 27 April 1994 must be brought to the attention of the Commissioner or the employer within 12 months from 19 November 2020 (i.e. 20 November 2021), failing which the right to claim will lapse.
In the letter, SERI asserts that the cut-off date is unreasonably short considering that it is to apply to a historically marginalised and disadvantaged category of workers. The letter then seeks clarity on the rationale of the cut-off date by asking six questions to the Commissioner:
The importance of retrospectivity in addressing past injustices and ameliorating poverty is explored in the Mahlangu judgment. In determining whether a retrospective order should be given, Acting Justice Victor stated,
“The fact that this case concerns intersectional discrimination is a relevant factor in determining whether a retrospective order should be granted… I am hopeful that the inclusion of domestic workers in the definition of “employee” under COIDA will contribute towards the amelioration of systemic disadvantage suffered by these women and contribute to breaking the cycle of poverty they suffer.”
While the cut-off date for retrospective claims was the main concern, the letter also enquires about the progress of Sylvia Mahlangu’s retrospective claim and invites the Compensation Commissioner to a meeting to engage in person about the queries addressed in the letter. The Compensation Commissioner is yet to respond to the letter.