Airing your dirty laundry at the CCMA: Disciplinary action against domestic workers

    Tuesday, June 22, 2021, 10:53
    Author name
    ​​​​​​​Dr Adriette Dekker

    The importance of an employment contract

    What is an employment contract?

    An employment contract is regarded as a relational agreement. This means that the parties to the contract form a bond of trust and solidarity which affects the relationship even more than the terms and conditions of the written agreement. This is especially true for domestic workers who do not only work for an employer, but for a whole household. Consequently, it is a very personal and unique employment relationship.

    It is for this very reason that disciplinary matters arising in the household context are problematic, as they are emotionally charged and both parties often experience any conflict as a personal attack, whether they are disciplining or being disciplined. 

    Employers of domestic workers must comply with the legal requirements for a fair dismissal.

    The Labour Relations Act 66 of 1995

    The Labour Relations Act 66 of 1995 unequivocally states that all dismissals must be for a fair reason and follow a fair procedure. This is referred to as the so-called substantive and procedural fairness of dismissals. 

    What are valid reasons for dismissal of a domestic worker?

    The Act prescribes a specific process for each of the following reasons for dismissal: 

    1. Misconduct; 
    2. incapacity (which include poor work performance and illness); and
    3. operational reasons.

    Disciplinary hearings are held where an employee is charged with misconduct, in other words where an employee contravened a workplace rule. 

    These principles apply regardless of whether the misconduct occurred in a private household or at a big company. In a private household, the process would be less formal, but the same basic principles will apply. 

    What is the purpose of the disciplinary hearing?

    The purpose of the disciplinary hearing is to provide the employer the opportunity to present the employee with the evidence and to simultaneously grant the employee the opportunity to state his/her side of the story, to investigate the evidence and to rebut the employer’s version by, for example, cross-examining a witness.

    The employer must retain sufficient proof that he/she informed the employee of the charges against him/her, granted him/her reasonable time to prepare his/her response against the charges and gave him/her a reasonable opportunity to present his/her case. 

    The employee may call his/her own witnesses and may cross-examine the employer’s witnesses as well. If the employee is found guilty of serious misconduct at the meeting, he/she can be summarily dismissed. This means he/she will be dismissed without serving a notice period or receiving notice pay.

    Are there any alternatives to dismissal?

    The Act urges employers to investigate alternatives to dismissal as so-called progressive disciplinary measures. The knee-jerk reaction of most employers is to dismiss an employee for misconduct, especially where the employer feels betrayed by the employee for committing a misconduct. 

    Dismissal is appropriate in cases of serious misconduct or breach of trust, but an employer should actively look for alternatives such as written warnings, suspension without pay or an apology. The focus should not be on punishment but restoration of the relationship.

    What legislative measures are in place to protect domestic workers? 

    Domestic workers form part of the most vulnerable employees in the economy with very little job security and low wages. Legislative measures had been amended over the pastyears to improve their situation, for example the Sectoral Determination for Domestic

    Workers, their inclusion in the Unemployment Insurance Act 63 of 2001 and the National Minimum Wage Act 9 of 2018.

    The Constitutional Court has also extended the scope of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 to allow domestic workers to claim from the  compensation Fund for injuries on duties.

    Employers of domestic workers should increasingly be aware of their responsibilities and liabilities to not end up airing dirty laundry anywhere.

     

     

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