The relationship between parent, child and nanny is complex at the best of times, so what happens when your childminder causes damage to property, or worse, injures your child?
Here is the question we received from the reader:
My nanny damaged some furniture and injured our child. She accidently dropped him onto a small side table, cutting his face open (requiring stitches and probably leaving a scar) and the table collapsed.
It is an expensive table to replace. Can we deduct the cost of the medical bill and the table from her salary?
Please advise? Thank you"
Smith responded by first pointing out that as parents, we can never say "thank you" enough to those who lend an extra pair of hands to look after and help raise our children.
He acknowledges that entrusting a caretaker with this job isn’t easy to do.
"Babies and small kids need constant care and supervision to stay safe, and this is a huge responsibility for a nanny. Ideally, we want to employ nannies who understand the needs of our children and are skilled in child care," he says.
Of course, kids can be unpredictable and, sometimes, no matter what precautions we take, accidents still happen.
"It’s every parent’s worst nightmare to leave their children with someone they trust, only to discover they are suffering neglect and abuse at the hands of their nannies. Thankfully, it doesn’t sound like your nanny leaves your child unattended or intentionally puts him in harm’s way," he clarifies.
All workers have legal rights under the South African Constitution, as well as employment laws.
People who are employed in a private household to look after children are considered "domestic workers", Smith explains, and their rights are protected by the Basic Conditions of Employment Act (BCEA) and Sectoral Determination 7.
Failing to respect these laws could lead to avoidable disputes at the CCMA.
No amount may be deducted
"Unfortunately, domestic workers are among the most vulnerable employees in our country, and the law is strict about wages, as well as what an employer can and can’t deduct from their salaries," he says.
"Keep in mind that an employer is not allowed to levy a fine; or deduct any money without the employee’s written permission. No amount may be deducted for breakages or damages of household goods," Smith explains.
When it comes to making deductions, it’s important to follow a fair process, and give the employee an opportunity to explain why the deductions shouldn’t be made. Deductions may also not exceed 25% of the nanny’s wages.
Misconduct or negligence
"Naturally if there has been misconduct or negligence, the law does allow for disciplinary action can be taken against the employee or a civil claim for loss or damages to be claimed," he continues, "But this could be detrimental for a healthy work relationship."
Many nannies in South Africa have received no special training and have limited experience.
Smith advises that in this case, the employer talk to their nanny about the ordeal, how similar accidents can be avoided in the future and consider looking into additional safety or first aid training.
Do you have a legal question you need help with? Share your questions via email at firstname.lastname@example.org and we may speak to a legal professional on your behalf. Anonymous contributions are welcome.
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