Domestic Workers - The Legal Side
- AfriBlog
- Jul 24, 2022
- 17 min read
Updated: Jul 28, 2022
Covered in this article are the following:
Employment Process of Domestic Workers
We found that most households meet and employ their workers via their friends and family networks as a method of filtering the workers, with trust being the largest factor when looking at employing a worker, and having friends and family recommending or vouching for the worker a big trust checkpoint is achieved.
This trust requirement is a natural concern, as domestic workers and other home workers are in fact workers that enters a very private space into the homes and in their lives, and allowing a total stranger into their homes remains a huge stumbling block, we also believe that by not having a method to confirm/achieve this trust, leaves a number of open positions and households that are looking at employing someone rather leaving these positions vacant, thus a great job creation opportunity exists if this trust factor could be addressed.
Besides the common process of networking with family and friends to find a person that could fill a position, we also found that there is no clear needs analysis and checklist type of reference used to look, find, filter and ultimately employ the employee, resulting often in a poor match between the household needs and the services that could be provided, or is expected to be provided by the employee.
It is vitally important for households/Employers to have a more structured approach to defining their needs and the checklist against which potential employees could be filtered, at the least we recommend the following are covered, and for reference we have a downloadable document assisting with this as a free download at the end of this article.
Defining the Environment: In the job requirements it is important that a summary is provided of the environment in which the houseworker would operate, as an example stating that it is a 3 bedroomed house, tiled or carpeted, the total number of rooms in the house, the number of bathrooms, if there are any additional outside buildings such as granny flat and/or others, this provides the employees viewing the advertised position and potentially the financial benefits in perspective, saving a lot of time in terms of interviews and interactions with potential employees.
Equipment at Household and Required Use/Application: We overlook the equipment we have in our households, and how these will be used by the worker, here we are referring to stating items such as washing machine type (EG Top-loader, Front-loader, Automatic etc), Tumble-dryers or not (Which will impact how clothes will be dried), type of iron that will be used (Standard, Steam, Press-down), Kitchen having gas stove and electrical oven or not (Especially if cooking is required).
Family Structure: It is important for the employee to understand the family dynamics of the household as this will impact not just the workload as an example but also prepare the worker in general in her/his approach and engagement with the household and if she/he would be a fit, such as that the family consists of the parents, two children aged x and y (which would be completely different between non-school and school going children and care)
Expectations: Households needs to define clearly what the expectations are in terms of the job/s that needs to be done, both broadly and also personalised requirements, in order to not just use this as a filter for interviewing and finding the ideal employee, but also to discuss, refresh and in greater detail define the expectations, such as the daily cleaning that will be required, weekly, monthly and then quarterly, (EG such as curtain washing annually, washing windows monthly)
Childcare/Children Interaction: if there are children in the house, whether the employee would be directly responsible for caring for them or not, it is advisable to provide an overview of the children, their requirements and your expectations in caring for the children.
Salaries and Benefits: Naturally the employee would wish to know what salary and benefits would be for the position, and for this purpose the household needs to carefully think through this in order to capture all the relevant points, especially the basics such as the hourly rate, the transport allowance that would be provided, meals, holiday and leave days, medical fees, education fees (as applicable for specific position), keeping in mind labour legislation and related (EG: Uniforms that is not a benefit but seen as Protective Equipment)
Checklist of Required Documents: It is easy to forget the most basic administrative documents that will be required, such as an ID document copy that would be required, other documents that may have to appear on the file of the employee, (You will definitely need to keep an admin file on the employee, this is covered later in this article)
Checklist of Labour Compliance Understanding: This checklist can be used for the successful applicant "meeting of the minds" and also acts as the foundation of the agreement that you need to sign with the employee, it cover cover things such start times, end times, lunch and tea breaks, overtime policy, leave policy and processes, other policies such as intoxication and absenteeism, by having this as general discussion the foundation is laid for a mutually understood relationship.
By having the above in a document form a search will yield more tangible and structured discussions, not just at the start of search but also the entire interview process and ultimately the relationship going forward.
Induction and Best Practices
Like any relationship the foundation of the relationship is laid at the start of that relationship, and in our observations of the Domestic and Home worker sectors it is evident that there is a significant gap, and indeed a great opportunity for employers, to integrate the new worker into their households.
We further found that employers have a very "light" approach to the induction and initial training/sensitisation of the new employee into the household, when this specific part of the relationship will have a dramatic effect on not just the continued long relationship between employer and employee, but also the service levels provided by the employee to the household.
It is therefore suggested that household have a full session with employer that welcomes the employee to the household, introduce to all family members, and then room-for-room cover the expectations in each room, what days you wish to focus on specifics, such as washing days, ironing days etc. Also the personalised points that would be applicable for each room or job that would be required, an example would be to open specific room windows on Mondays, whatever may be specific requirement/s, it is highly advisable to have a list for each room to discuss, as well as what the daily routine would typically be.
This induction should also include other dynamics, such as contact numbers, emergency numbers, safety advice and requirements (EG storing of poisonous cleaning materials in households with small children)
Domestic Worker Definition
Let's also look at the definition of a domestic worker, around which there seems to be some confusion, the following are defined in labour acts and regulations.
The word “domestic worker” means any domestic worker or independent contractor who performs domestic work in a private household and who receives, or is entitled to receive pay and these include the following workers:
Gardeners
Domestic workers employed or supplied by employment services.
Drivers of the household, a person employed by a household as a driver of a motor vehicle; and
A person that takes care of children, the aged, the sick, frail or disabled, this includes Nannies, Au Pairs etc.
It does, however, not include a farm worker who performs domestic work in a home on a farm.
The Basic Responsibilities for Employers
The moment that any worker works for you for more than 26 hours a month, they are employed by you, and no longer considered a casual employee, and as such at this point there are a number of legal requirements that come in, some of the most important ones are:
You need to sign an employment contract with the employee
You need to provide your employee with a payslip each month
You need to register the employee for UIF and subsequently start payment of UIF
You need to register the employee with COIDA and start payment of annual COIDA fees
Minimum Wages
It should be understood that while the word minimum wage is a defined term in the act, the word does not constitute that it is a "living wage" and employers paying their employees more than the minimum seems to be acutely aware of such, equally so the market for great people will always require that you pay your worker more than the minimum wage.
Surveys during 2021 showed that domestic workers in reality earn between R2,614 and R2,916 a month. The more worrying finding from the survey is that one in five domestic workers (21%) are earning less than R1,500 a month, and two-thirds earned below 2021’s minimum wage. Only 1% reported earning more than R6,000 a month.
As from 1 March 2022 the minimum hourly wages for a domestic worker is R23.19. This is an increase of 6.9% from the previous year. Assuming a domestic worker is working 160 hours a month (eight hours a day, 20 days a month), the monthly wage comes to R3,710 for the month.
An employer must be aware that it is a criminal offence to pay less than the National Minimum Wage. An employer is not permitted to engage in a negotiation with their employee/s whereby they agree to a daily wage that is less than the National Minimum Wage. The Basic Conditions of Employment Act ensures that no employee can receive less than what is prescribed in the Act.
The National Minimum Wage is only applicable to the payment of ordinary hours of work and does not apply to allowances for transport, meals, accommodation and bonuses.
Employers cannot reduce the salaries of domestic workers who earn more than the minimum wage. It’s considered unfair labour practice for an employer to reduce the salary of a domestic worker who earns above the minimum wage.
Hours of Work
The above rate is for normal hours and a domestic worker may not work more than:
45 hours per week
9 hours per day for a five day week
8 hours per day for a six day work week
Should overtime be required these needs to be agreed, as overtime is voluntarily, and the rate as mentioned above would then be multiplied by factor of 1.5, thus overtime rate under current legislation would be R34.78.
Although a worker may be requested to work overtime, there are limitations, and a domestic worker may not work:
More than 15 hours overtime per week, and;
More than 12 hours on any day, including overtime.
Note: An employee may agree to take paid time off instead of being paid the multiplier for overtime worked, this will be based on the same principle, for every hour worked the time off would be 90 minutes.
A domestic worker is entitled to an hour break for a meal after 5 hours of continued work, such an interval may by agreement be reduced to 30 minutes, and if your worker needs to work through that meal they would have to be paid for such.
Sunday work is voluntarily and the worker may not be forced to work on this day, and any hours worked on Sunday would have to be paid at a multiplier of 2, thus the minimum applicable would be R46.38 and this would be based on the agreed salary of the employee, you cannot implement a different rate than the rate in the employment contract for this purpose.
Public Holidays
Domestic workers are entitled to all public holidays as contained in the public holidays act, in addition there may be mutual agreement on other public holidays that are not contained in the act. Working on public holidays is also voluntarily, and wages would be determined at multiplier of 2 if working on these days, the current official public holidays are:
New Years day
Human rights day
Good Friday
Family Day
Freedom Day
Employees Day
Youth Day
National Woman’s Day
Heritage Day
Day of Reconciliation
Christmas Day
Day of Goodwill
Any government declared official public holiday
Looking at Leave and the Different Classifications
Leave - Annual
Annual leave provision for domestic workers:
Three weeks per year or 1 day for 17 days worked, domestic who does not work 45 ordinary hours, leave can be calculated at 1 hour for 17 hours worked, or 1 day for every 17 days worked
The leave must be given not later than 6 months after completing 12 months of employment with the same employer.
The leave may not be given at the same time as sick leave, nor at the same time as a period of notice to terminate work.
Leave - Sick
Sick leave provision for domestic workers:
During every sick leave cycle of 36 months an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.
During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
The employer is not required to pay an employee if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
Leave - Maternity Leave
Maternity Leave Provisions for domestic workers
An employee may take up to four months of unpaid maternity leave and is not allowed to return to work for a minimum of six weeks after giving birth.
As an employer, you are not legally obliged to pay a portion of their salary during maternity leave, but you may choose to.
The mother can also claim maternity benefits from UIF for the full four months.
Leave - Family Responsibility
Family responsibility provision for domestic workers:
Domestic workers who have been employed for longer than 4 months and for at least 4 days a week are entitled to take 3 days paid family responsibility leave during each leave cycle in the following circumstances:
when the employee’s child is born
when the employee’s child is sick
if one of the following people dies: the employee’s husband / wife / life partner / parent /adoptive parent / grandparent/ child/adopted child/ grandchild/ brother or sister
More than 3 days of family responsibility leave is unpaid and may be deducted of the employees wages.
Unemployment Fund
There seems to be confusion on the registration and payment of UIF for domestic workers, yet if any worker works for you for more than 26 hours per month, then you are under a legal obligation to register that employee for UIF, and to make the contributions towards UIF
The employer must register as a contributor to UIF and must register her domestic worker as a beneficiary. The UIF will send the employer a contributor number when she registers and she has to use that number when making payments. The total amount for UIF is 2% of the worker’s salary each month: 1% is paid by the employer and the other 1% can be deducted from the worker’s wages to be paid over to UIF.
It is the responsibility of the employer to pay the UIF contribution for her domestic worker. If she doesn’t pay it, she/he can be held personally liable for payment of the amount owing to the UIF. Non-payment of UIF is an offence and the UIF will levy a 10% penalty on all the unpaid back contributions, and the finance committee at UIF will also calculate interest owing.
A worker who works more than 24 hours a month can claim UIF benefits when she becomes unemployed if she was dismissed or retrenched or the employer dies. She cannot claim UIF if she resigns. If she agrees to the termination of her work – that is, if she was not dismissed or retrenched, she also doesn’t qualify.
In order to register your employee for UIF you will be required to have the following information and documentation:
Personal details of your employee that will include the Name, ID Number and Salary information
Your details which will include you Name, ID Number, Physical Address, Postal Address, E-Mail and Mobile Number
Forms UI-19 and UI-8D completed, and for which you will also require a utility bill that is not older than 3 months (You can download these forms at the end of this article under Downloads Section)
There are a number of channels you could use for this process, these are:
Department of Labour Centre Near You
Department of Labour Online System
Email UI-8D and UI-19 forms to domestic@uif.gov.za
Post to UIF, Pretoria 0052
The Go-To Guy strongly recommends taking the online registration route :)
The U-Filing Process Basic Steps
You will go to the website address https://ufiling.labour.gov.za/uif/ click on "Register"
You will then be presented with terms and conditions to accept, click on Continue
You will then have to complete a number of fields, note: the first field is a username that you have to create, remember this as you will require it later when you want to access the system again
You will then receive an activation mail with a temporary password, and a link that you need to click in the mail, clicking on this link will take you to a login screen, where you will be prompted for a new password
From here you will go through a vetting process where you have to answer some questions, this will include your physical address, postal address, email address, mobile number, employers, exactly what you entered when you registered.
Once you completed the above questions you will be directed where you can confirm/update your personal details before proceeding to the Ufiling website
You will then on the left column see a dropdown menu, look and click on "Registrations"
A page will open with three tabs at the top, click on "Domestic Employer"
You will then go through a process where you will be verified, capture your details, capture employee details.
A important part here will be the date of employment that you will be requested to put in of your worker and you are bound by law to register within 7 days from employee having started working for you.
You will then enter all the details of the employee on the next screen, this will include name, ID number and date of birth.
You will then have a screen capturing a range of details on the employment details, this includes start date, hours worked monthly, gross salary, UIF deductible salary, UIF contributions, Occupation, qualifications, physical and postal address.
Once finished you will then receive a mail with your UIF number as an employer, this will now allways be your UIF number and every-time an employee leaves or starts you will update only the employee details on your profile.
From here on forward you would have to ensure that by 7th of each month you pay the UIF that was due for the previous month, else penalties and interest will be charged to your account.
UIF payments can be made by EFT and by Debit Order
Notes: If you did not pay UIF for previous periods then UIF will be calculated for previous periods at 2% UIF owed per month for the period owing, a 10% penalty fee would be charged on the UIF amount and then an interest charge will be added (fluctuates and UIF finance department will advise this rate), you cannot deduct any arrears from the employee, only going forward after you have registered as an employer can you deduct 1% monthly, UIF for domestic workers started in April 2003
Can a domestic worker claim UIF and SASSA Pension
Yes, a domestic worker could certainly claim UIF (only IF she is entitled to claim) and apply for a SASSA pension at the same time, BUT as the old-age pension is a means-tested grant, the UIF money would be taken into account as income, thus decreasing the amount of pension money to be received. For this reason, it is generally better to claim any UIF benefits due before applying for the SASSA grant.
COIDA
Domestic workers who suffer injury or contract an illness while on duty at the private home of their employer may apply for compensation from the Compensation for Occupational Injuries and Diseases (COIDA) Fund. Dependants of domestic workers will also be able to claim from the Compensation Fund.
Employers will need to register with the Compensation Fund and pay annual assessment fees based on their domestic worker’s earnings. Employers are NOT allowed to deduct money from wages as contributions to the Fund. Employers who fail to register or default on payment of assessment fees will be liable for fines or prosecution in the event of a workplace incident (refer to the landmark ruling by the Constitutional Court on 19 November 2020, Sylvia Mahlangu v Minister of Labour).
All employers of domestic works (including gardeners) – whether part-time, casual, temporary or full-time – must register themselves and their employees with the Compensation Commissioner, this effective from 10th of March 2021, and we attached that notice published on 10th March 2021 in the Government Gazette
Any person who employs a domestic worker is therefore deemed to be an employer and is obliged to register their domestic workers with the Compensation Fund by paying an annual fee on their behalf. Employers who fail to do so are guilty of an offence and liable to a fine, and should a domestic worker who is not registered with the Compensation Fund be injured on duty, such domestic worker can also institute civil proceedings against their employer.
It is essential for employers to register their domestic workers with the Compensation Fund, to indemnify themselves from civil litigation. The failure to register with the Compensation Fund may open an employer up to costly and time-consuming litigation.
The annual fee payable by an employer is calculated as follows: The domestic worker’s annual salary ÷ 100 × 1.04. if we take the current minimum wage as an example then the annual salary would be R44,520 annually must therefore pay an annual fee of R460 to the Compensation Fund.
What sort of protection does this cover offer your employee?
In the event that they fall ill or suffer an injury as a direct result of their employment, they will be able to claim compensation for temporary or permanent disability, assistance with medical bills, orthotic or assistive devices and rehabilitation services.
In the event of their death, their dependants can claim compensation from the fund for funeral expenses and ongoing support in the form of a widow/widower’s pension or lump sum, a child pension or additional dependency award to cover parents, siblings and other family members who may have been dependent on the employee.
It doesn’t matter how many hours a week the employee works for you, how you pay them, or what kind of contract you have – you need to register them. This applies even to employees who work for multiple employers – each of those employers will need to register them
How to Register your employee
You are going to need the following documents and information:
Your own personal details, name, ID, Mobile Number, E-Mail Address, Residential Address, Banking details, and then strangely you will also require the details of your Spouse/Partner
A completed CF-1E Form, which is the application for the registration of the domestic worker employer, we attached this form in the downloads section.
A copy of the ID/Passport/Work Permit, your own as well as your employee
Proof of your address
Copy of your employment contract
Your UIF Number you received when you registered your employee with UIF
This application needs to be sent by mail to mail address: registrationcf@labour.gov.za or you can register online at this link: Department of Labour Online User Registration
Once registered you will be expected to submit a Return of Earnings (ROE) on an annual basis as soon as the ROE system opens between 1st April and 30th of May each year, and you can do this online by registering at this link: Department of Labour Online User Registration
Employment Contracts
Every domestic worker that works for you more that 26 hours per month must have a contract with you as an employer, and it is important that you cover all the relevant points in that agreement, besides the basic requirements we also suggest that you apply your mind to other points of importance and add that in the agreement, some of these are:
The ability to use polygraphs and consent from employee in this regard
If you will be having monitoring and nanny cams, specify this in your agreement and ensure that employee is aware and accepts this monitoring as part of the employment agreement.
The process and tests that may be done if you suspect intoxication of any kind, this should include the consent to breathalyser tests as well as blood tests if required, specifically you should place in agreement that you have a zero tolerance policy, therefore any trace of any intoxicating substance is considered a breaking of this policy, further state that if employee arrives intoxicated that she/he will be sent home and marked as absent, with absenteeism charge then becoming applicable.
How disciplinary matters would be addressed, referring to the guidelines from department of labour.
Any probation periods, specifically its important to monitor and record performance during probation period, see FAQ on probation period later in this article
Here is a checklist that you can use as a tick list to ensure you have all the relevant clauses in you agreement:
The full name and address of the employer
The full name and occupation of the employee, and a description of the work they will be doing, include all the duties on the list, including details on watching children and caring requirements
The place of work
The start date of employment
The domestic worker’s agreed working hours and days of work. It is important to note that agreed working hours may not exceed 45 hours a week, including a daily one-hour lunch break that must be taken after five hours of work.
The domestic worker’s wage or rate and method and frequency of payment
The rate of pay for overtime work
Any other cash payments the employee is entitled to
Any deductions taken from wages
The leave they are entitled to
The notice period required to terminate employment, or the date of termination if the employment is for a specific period only.
The different consents as per section above
The benefits that they will receive over and above their basic salary, such as transport, meals, accommodation - note uniforms is not a benefit
Policies such as zero tolerance policy for intoxication.
If they will be monitored using video footage or nanny cams
This list is not exhaustive and you need to apply your mind in ensuring that you have all the relevant points as it pertains to your household covered, also you need to ensure that your employee understands all the requirements.
Payments of Wages and Other Fees
Payment of salary:
The employer must pay the domestic worker in cash, by cheque or directly into their bank account. Payments must be done during working hours. Any payments made and received should have a verifiable record, so if you pay by cash then let employee sign for funds received.
The employer may not deduct from the domestic income for the following reasons:
Breakage (crockery, electrical appliances,
Damages (ironing)
Meals provided during working hours,
Clothing,
Work equipment.
Downloads
UIF Form UI-8D
UIF Form UI-19
Notice Government Gazette COIDA
COIDA CF-1E Form
FAQ
When is a Domestic Worker Eligible for UIF
If a domestic worker is dismissed or retrenched (involuntarily), or has to involuntarily retire, or is unable to work due to illness, maternity or adoption leave, or if the employer dies, s/he would be eligible to claim UIF. This is under condition that all contributions are current and paid up.
If the domestic worker resigns or voluntarily retires or opts to be voluntarily retrenched, s/he is not eligible to claim UIF.
Is there a requirement for long service pay/award?
Unless the Employment Contract specifically makes provision for this, there is no such thing as “long service pay / award”. There is no legal requirement to pay a domestic worker (or any other employee) a ‘package’ upon death. It is solely up to the employer. Some employers pay one week’s full pay for each completed year of continuous service (i.e. using the same formula as in the case of a retrenchment), BUT it is up to the EMPLOYER to decide
Can a domestic worker claim UIF and SASSA Pension
Yes, a domestic worker could certainly claim UIF (only IF she is entitled to claim) and apply for a SASSA pension at the same time, BUT as the old-age pension is a means-tested grant, the UIF money would be taken into account as income, thus decreasing the amount of pension money to be received. For this reason, it is generally better to claim any UIF benefits due before applying for the SASSA grant.
Can you vacate Domestic Workers from supplied Accommodation
This is covered under Sectoral Determination Clause 26
If the employer of a domestic worker who resides at the workplace or in other accommodation supplied by the employer terminates the contract of employment of that domestic worker before the date on which the employer was entitled to do so in terms this clause, the employer is required to provide the domestic worker with accommodation for a period of one (1) month or if it is a longer period, until the contract of employment could lawfully have been terminated.
2) If a domestic worker elects to remain in accommodation […] after the employer has terminated the domestic worker’s contract of employment in terms of this clause, the employer may deduct, in terms of subclause (8)[Deductions], for that period 10% of the amount the employer is required to pay in terms of this clause as the value of the accommodation.
Which Law Regulates the Relationship between Employer and Domestic Worker
The Basic Conditions of Employment Act, No 75 of 1997 (BCEA): sets out minimum employment standards for all employment contracts in relation to matters such as working hours, leave, remuneration, etc.
The Labour Relations Act, No 66 of 1995 (LRA): the most significant effect is that it imposes a duty to carry out any possible dismissal of your domestic worker in a fair manner and to refrain from unfair labour practices like unilaterally changing your domestic worker's conditions of employment.
What should be considered in disciplinary procedures
The Disciplinary Procedure For Misconduct
Provided by the Commission for Conciliation Mediation and Arbitration (CCMA) The purpose of these explanatory notes is to supplement the disciplinary procedure below and offer suggestions on how to apply the draft disciplinary procedure. These notes also highlight innovations introduced in the procedure. The Code of Good Practice
This procedure has been drafted in accordance with the principles set out in the Code of Good Practice, which is contained in Schedule 8 of the Labour Relations Act, no. 66 of 1995. It is recommended that this procedure be read in conjunction with the Code of Good Practice. Misconduct is one of the grounds in law that justifies an employer terminating the contract of employment of an employee. However, for a dismissal for reasons of misconduct to be fair the dismissal must be:
Substantively fair- there must be a valid reason for the termination of the contract of employment. The facts of each case will determine whether the dismissal is for a fair reason and whether dismissal is the appropriate penalty; and
Procedurally fair - the dismissal must be effected in a procedurally fair manner.
This means that an employer may not just give notice in accordance with the contract of employment or in terms of governing legislation. An employer must also ensure that dismissals for misconduct are for a valid reason after a fair procedure has been followed. Structure of the Disciplinary Procedure The procedure is drafted on the assumption that an employer will apply progressive discipline on the understanding that discipline should be corrective rather than punitive. This means that the employer should endeavor to first correct an employee's behaviour, such as by issuing:
verbal warnings for minor transgressions;
written warnings for consistent misconduct; and
final warnings for persistent misconduct.
Dismissal should be considered as a last resort.
The procedure provides that before an employer issues a warning (written warning or final written warning) to an employee, the employer must meet with the employee concerned. The purpose of this meeting is for the employer to hear the employee before the employer issues the written warning. The procedure is intended to provide a framework for parties to use in drafting their own disciplinary procedure.
How to use the Procedure
The procedure sets out the minimum requirements, which any disciplinary procedure should contain. Parties may wish to supplement their own procedure with this procedure or use this procedure to provide a basic structure for developing their own procedure. However, it is a procedure, which, if applied as it currently stands, should ensure that discipline is fairly and effectively administered. The Code of Good Practice requires employers to adopt disciplinary rules that establish the standard of conduct required of employees. The Code recognises that the content of disciplinary rules will vary, depending upon the nature, size and type of undertaking in which the employees are employed.
Service of Notices referred to the Procedure.
All written notices must be properly served on the employee concerned (written warning, final written warning, notice to attend a disciplinary procedure etc.) It is recommended that the employee who is served with a notice should be asked to sign acceptance of receipt of the notice. However, if the employee refuses to sign when served with a notice, the employer should record this fact on the notice and state the time, date and place where the notice was handed to the employee concerned.
Duration of Warnings The procedure suggests that:
a verbal warning should remain valid for 3 months
a written warning should remain valid for 6 months and,
a final written warning should remain valid for 12 months
However, the length of time warnings should remain valid are suggestions only and this issue should be decided upon by the employer and the employees or unions with whom the employer negotiates the procedure.
Disciplinary Records
The Code of Good Practice recommends that employers keep a record for each employee specifying the nature of any disciplinary transgression/s, the actions taken by the employer and the reason/s for such action/s. For this reason the disciplinary procedure requires the employer to file copies of any written warning, final written warning or any representation made by the employee on the employee's personal file.
Representation at a Disciplinary Enquiry
The disciplinary procedure provides that a fellow employee or a shop steward of a recognised trade union should represent an employee. If a shop steward is called to attend a disciplinary hearing the Code of Good Practice requires an employer to consult with the shop steward's trade union prior to issuing any notice to attend a disciplinary enquiry.
Disciplinary Enquiry
The chair of the disciplinary enquiry must, insofar as it is possible, be a person who is able to make an independent decision based on the facts presented at the enquiry. The chair of the disciplinary enquiry must be a person who has not been involved with investigating the employee concerned or who is going to prosecute the charges against the employee in the disciplinary hearing.
The chair of the disciplinary hearing must consider whether:
the employee being charged broke a rule of conduct in the workplace;
the rule was valid or reasonable;
the employee knew about the rule or should have known about the rule; and
the employer has been consistent in applying the rule.
Once the chairperson of the disciplinary hearing has made a determination about whether or not the employee is guilty of the offence with which the employee is charged the chairperson must consider the appropriate sanction to impose, after having heard the employee in this regard. The chairperson must consider whether dismissal is the appropriate remedy to take against the employee for breaking the rule or whether a less severe penalty, such as a final written warning or suspension would not be more appropriate. Each case must be judged on its own particular facts and the chairperson of the disciplinary hearing should always take into account the nature of the job and the circumstances surrounding the commission of the offence itself.
The Code of Good Practice recommends that when deciding whether or not to impose the penalty of dismissal, the employer should consider:
the gravity of the misconduct;
the employee's circumstances, including length of service, previous disciplinary record and personal circumstances;
the nature of the job; and
the circumstances of the infringement itself.
It is imperative that the employer applies the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past and consistently between two or more employees who participate in the misconduct under consideration.
Referral of a dispute
An employee who is dismissed may refer a dispute to the CCMA or a bargaining council with jurisdiction within 30 days of the date of the employee's dismissal. An employer should advise the employee of this right upon dismissing the employee. It is the practice of the CCMA not to accept any referrals from parties until all internal procedures have been exhausted.
INCAPACITY PROCEDURE FOR POOR PERFORMANCE
Objectives
This procedure applies to all employees, other than probationary employees who are alleged not to be performing to standard. It distinguishes between employees who can reasonably be expected to bring their performance up to standard (cases of poor performance) and employees who are not able to do so, due to ill health or injury. The procedure only applies to employees who can reasonably be expected to bring their performance up to standard. The procedure does not apply if it is alleged that the employee has breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply. Procedure for employees in respect of Poor Performance
If the employer is of the view that an employee, other than an employee on probation, is not performing in accordance with the job that the employee has been employed to do, the employer must:
give written reasons why it is necessary to initiate this procedure;
after serving the written reasons, meet with the employee, and if the employee so chooses with the employee's trade union representative and/or a fellow employee.
In the meeting the employer must:
explain the requirements, grade, skills and nature of the job; evaluate the employee's performance in relation to the requirements of the job, indicate reasons for perceived poor performance;
hear the employee on whether the employee has performed in accordance with the requirements of the job; and if the employee agrees she or he has not performed in accordance with the requirements of the job, give reasons.
After hearing the employee's standpoint, the employer must, if necessary:
develop and initiate a formal programme of counselling and instruction to enable the employee to reach the required standard of performance, which must include:
assessing with the employee the time that it would take for an employee to overcome the poor work performance;
on the basis of the assessment, establishing realistic time frames within which the employer will expect the employee to have met the required performance standards; and
if necessary, identify and provide appropriate training for the employee to reach the required standard of performance, and
establish ways to address any factors that affect the employee's performance that lie beyond the control of the employee.
If the poor performance of the employee is not remedied within the time frames established by the programme, the employer must:
give the employee a written report on the outcome of the procedure; and
consult again with the employee to explain the outcome of the procedure, and on measures to address any problems indicated in the report.
The employer should keep a record of all counselling sessions.
After consulting with the employee, the employer must consider whether:
to continue to give the employee the appropriate guidance, instruction and counselling and establish a further, appropriate period for the employee to meet the required standard of performance,
to mentor the employee, or
to convene a poor performance hearing to consider what action should be taken, which action may include placing the employee in a more appropriate job or dismissing the employee.
The Code of Good Practice
This procedure has been drafted in accordance with the principles set out in the Code of Good Practice, which is contained in Schedule 8 of the Labour Relations Act, no. 66 of 1995. It is recommended that this procedure be read in conjunction with the Code of Good Practice.
An employer is entitled to expect employees to meet acceptable levels of performance. These standards or levels of performance must be relevant to the workplace and reasonable. The performance standards must be made known by the employer to the employee.
At the same time employees are entitled to expect that they will be dealt with fairly and if the employee is not meeting the required performance standard this will be drawn to the employee's attention.
The employer must, depending upon the nature of the employee's job, give the employee feedback, evaluation, training or guidance on how to meet the expected level of performance. The employee should also be given a reasonable period within which to meet the expected performance standard. If, despite counseling and training, the employee is still not able to meet the required performance standard, within a reasonable time period set, the employer may dismiss the employee for poor performance.
A dismissal for poor performance is only justified if the employee was counseled, offered assistance, given a reasonable time within which to improve the performance and despite being made aware of the possible consequences of a failure to improve his/her performance did not so.
Service of Notices referred to the procedure.
The written notices to attend a poor performance hearing must be properly served on the employee concerned. It is recommended that the employee who is served with the notice should be asked to sign acceptance of receipt of the notice. However, if the employee refuses to sign when served with the notice, the employer should record this fact on the notice and state the time, date and place where the notice was served on the employee concerned.
Dismissals
In the event that the employee does meet the required performance standard, despite the employer following this procedure, the employee may be dismissed. The employee should be informed that if the employee intends to challenge the dismissal the dispute must be referred to the CCMA or to a bargaining council with jurisdiction, within 30 days of the date of dismissal.
What if I cannot afford my worker anymore
Employers cannot just terminate the employee, and need to find other ways of handling the issue, for instance, reducing the working days of their workers. A domestic worker will then have the time to look for part-time or piece jobs to supplement the income.
What about Probation Periods
The three-month probation period is not a mandatory requirement
In South Africa, probation periods are not mandatory; they are, however, if you choose to implement one. To do this, make sure to follow the correct procedures.
Employees on probation are subject to certain temporary guidelines, and these are not applied to those who are promoted. The LRA is the governing body for this law.
The probation period you should be aware of and agreed to upfront when entering into a relationship as an employer with the employee
The probationary status of an employee is only applicable to issues of work performance. They are not a dependable way out if you and the employee disagree on subjective matters. Their rights must be protected like those of permanent employees.
Probation does not mean that you can fire a new employee if they are not performing. You must use the right process. The dismissal process must be fair as defined in the best practices and relevant acts, specifically referring to being 'Substantively and procedurally fair'.
The reason we recommend adding a clause in a permanent hire contract is because it takes less risk on your company, and you can get insight into the employee’s skill.
You need to ensure you review the skills during the probation period, we suggest that you have a checklist of the skills that you agreed on at the start of the relationship, and carefully review against this checklist as you go through the probation period.
A probation period is a time for you to get to know the candidate on a deeper level. You can note any concerning traits that need to be noted, and monitor development during the probation period. You may note areas where skills gaps exist.
The probation period ensures that you have time to evaluate whether the employee is right for the position. You need to measure these skills and communicate vital development areas with them, in order to give them the opportunity to improve. It is a fair process that ties into the fundamentals of the job at hand and not just personal evaluation.
When you have set a plan in place you can easily identify and remove any employees that are not performing. To do this successfully make sure to clearly communicate your expectations to them.
Make sure you have an unbiased probation clause in place
You can onboard the employee with a conditional agreement in place, where you clearly define your expectations, how it will be monitored, ensure you also clearly define the start and end dates of the probation period, including notice periods and possible probation extension periods.
Some tips on Probation agreements:
You need to have a clear understanding with employee that he/she is on probation, including the period of probation
You need to be clear on your requirements and against what the employee would be measured, these needs to be reasonable
Employees in general have the misconception that after the probation period there would be an adjustment upwards in their salaries, clearly define if this will be the case or not
You need to clearly monitor, measure and provide feedback to employee during the probation period, and you need to keep record of these, including the review and feedback notes and corrective actions agreed, including what you have done from training and corrective actions perspective.
It is a misconception that you can just terminate the employee at end of probation period, employees on probation period have the same rights as a full time employee and any termination needs to be fair, this is an important point to keep in mind.
Note: We are not legal and labour experts, and we suggest on any specific points that you discuss with your legal/labour consultants we placed the information here for convenience and as a starting point for you to build on.
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