So you and your family have a lovely bond with your domestic worker (let's call her Thandi) and suddenly out of nowhere she doesn’t pitch up at work that day. No explanation. No warning. Her phone is off. Later on that day she SMSs you and tell you that her child is sick or that she's had a family emergency to attend to.
Being the compassionate and sympathetic employer that you are, you ask if there’s anything you can do to help and you enquire as to when your domestic worker will be returning to work (roughly).
The week comes to an end and you’ve managed to get by, thanks to your mother-in-law who stepped in to look after your new-born while you did the school run and rushed to a few meetings, but you haven’t heard back from Thandi.
A few more weeks go by so you call her again. She tells you that now she’s sick too. You’re slightly worried that you may need to seek temporary help in the house and you’ve run out of family members and friends to help you with childcare and you really need someone to help you out with the housework.
Following a number of weeks of radio silence Thandi calls in to say that there has been a death in the family and that she needs to travel to her home town for another few days to attend the funeral.
It's nearing two months now and Thandi has still not returned. Having used up all of her annual leave, family responsibility leave and sick leave you're now paying for her absence.
Many of us who are privileged enough to be able to employ a domestic worker are familiar with this sort of scenario. Sometimes things can get tricky when you’re left stuck for weeks without help or any idea of when your domestic worker will be returning.
It gets even trickier when you start to doubt whether or not she’ll be returning at all and so you start considering the possibility of having to hire someone new.
There are many reasons for employers who’ve had enough: bad attitudes, lazy work ethics, or a similar situation to the one mentioned above. The labour law protects employees against unfair dismissal and there are certain things you need to know before going ahead with terminating a domestic worker’s contract so that you don’t end up in CCMA.
We chatted to Kenny Uytenbogaardt, chairman of the Employers Service Organization of South Africa [ESOSA] about how to do this the right way:
In this sort of situation (where it’s likely that the domestic worker will not be returning to work) what would be the correct procedure to follow in terms of dismissing the domestic worker the legal way?
- The domestic is entitled to 5 days family responsibility per year for her sick child. Having said that the employer is entitled to ask for proof. This would usually be a certificate from the treating doctor/medical practitioner stating the employee’s name and that her child is ill. No proof, no payment.
- On the 6th day if the employee does not report, the employer may communicate with her in whichever form – whatsapp, sms, telegram etc.. instructing her to report immediately to explain her absence. Always retain proof of communications.
- In the example given the employee advises the employer that she herself is now ill. A domestic worker who works a 5 day week is entitled to 30 days paid sick leave during a 3 year cycle. So if the employee has sick leave available the employer again may request proof of illness/incapacity.
- The employer should not allow weeks to go by. On the 4th day of sick leave, if the employee has not sent medical certificate or reported, the employer again communicates with her to report the next day to explain. No proof, no pay.
- In the example given the employee advises the employer that there is a death in the family. She has used her family responsibility for her sick child so is not entitled to further paid family responsibility leave.
- The employer again communicates, again requests proof and advises that this leave will be unpaid and that the employee is to report to the workplace within the next 3 days to explain, that her absence is unacceptable and should she not report then the employer may consider that she has repudiated her services and may accept same.
- Should the employee not report within the 3 days she is again contacted and advised that should she not report within the next 3 days then the employer will accept she has repudiated her services.
- If the employee does not report then the employer communicates with her a final time referring to the numerous communications, that she has not reported as instructed, that her last working day is recorded as X and that the employer accepts she has repudiated her services.
- Finalize the employment relationship by paying any wages due to her and any annual leave that was due but not taken.
- Should the employee then turn up, it is incumbent upon the employer to give her the opportunity to explain. The employee is asked to write her explanation. If her explanation is reasonable then the employer may reinstate. However, do record in writing all that has transpired and that if the same occurs in the future then you, as the employer, reserve your rights in the matter. Have the domestic sign the written recording. Photostat and give her a copy. Retain the original as your proof.
If a domestic worker will likely be off of work for a long period of time, can an employer hire someone else temporarily until the domestic worker returns?
Yes, an employer may hire a temporary help. The contract/agreement with this person must state very clearly that she is employed on a temporary basis to assist the employer whilst Ms ______________ is away and that the contract/agreement will terminate upon Ms ________________ return. The temporary person MUST sign this contract/agreement.
What are fair grounds for termination of contract or dismissal?
Our labour law provides for only three grounds:-
This relates to the employee’s behaviour and should be of serious nature to warrant sanction of dismissal.
This relates to either injury/ill health or poor work performance.
When you have to retrench your domestic e.g. you can no longer afford her services or you are relocating etc…
Termination of contract may apply to a fixed term contract. An employee may be employed on a temporary basis not exceeding a three month period. It must be made clear from the outset, in writing, that the employment is only for that period.
Once it has been established that employment shall be terminated, until what point must the employer continue to pay the original employees’ wages?
This depends on the reason for dismissal after following fair procedure.
Misconduct may warrant a summary dismissal. In the event of summary dismissal the employee is paid wages only for time worked up to the date of dismissal.
In the event of incapacity a notice period may apply if the employer agrees to waive the notice period [does not wish the employee to work the notice period]. The notice period will depend on the employee’s length of service.
- One week’s wages if the employee has been employed for six weeks or less.
- Four weeks wages if the employee has been employed for six months or more.
- Live-in domestic workers are allowed to stay on the premises for a month.
Should a domestic worker be retrenched she will be entitled to severance pay of one week’s wages for every 12 months of continuous service with the employer.
At termination for whatever reason the employee should receive payment for any annual leave that was due but not taken.
If the domestic worker is only required to work one day a week, do the same procedures need to be applied in the case of dismissal?
Any employee is protected by the provisions of the Labour Relations Act. Dismissal may only be effected for fair reason following fair procedure.
Would you encourage anyone hiring someone to have a contract with the employee and how should they go about this?
Not only encourage but actively advocate entering into an employment contract. Not only does the law prescribe that all employees are to have particulars of employment in writing, it protects both employer and employee in the event of any kind of dispute about terms/conditions of employment.
Employers may access the Department of Labour website for a sample contract for domestic workers.
Many domestic employers are faced with the problem where their employees walk out on them due to a grievance. The domestic worker then goes to the CCMA claiming that they have been fired. What advice would you give to an employer in this situation?
The employee will not return to work so the absenteeism procedures as above [with the hypothetical Princess] must be followed. Retain proof of your communications with the employee at every step as this will be vital at any CCMA hearing should it proceed.
The domestic worker industry is regulated by legislation as contained in Sectoral Determination 7 and every employer should keep a copy.
This Sectoral Determination may be downloaded from the Department of Labour website at www.labour.gov.za