You’ve employed the same domestic worker for the last 10 years but now, due to a change in your financial circumstances, you need to either end her labour contract or reduce her working hours. If you don’t follow the correct procedures, you could find yourself in front of the Commission for Conciliation, Mediation and Arbitration (CCMA). Labour adviser, Rael Solomon, says he typically finds that employers who have a gardener once a week, fail to realise that any employee who works more than 24 hours a month, is considered a permanent employee.
Here’s what you need to know:
The employment contract
The first basic rule is that you have to have an employment contract in place. This protects not only you but also your domestic worker. The employment contract should clearly state:
- Your full name and address as well as that of your employee.
- The place of work and the date from which they are employed.
- The agreed working hours (not more than 45 hours a week).
- The agreed salary.
- An agreed payment for overtime.
- Any other agreed payments such as a travel allowance and December bonus.
- Payment in kind, for example, meals and/or accommodation.
- Leave agreed to – annual leave, maternity leave, sick leave and family responsibility leave.
- The term of the contract, for example, one year.
- The notice period required for either party to terminate the contract.
Bernard Reisner, an industrial relations consultant at Cape Labour and Industrial Consultants, says having an employment contract in place is a legal requirement and points out that any clauses in an employment contract that conflict with legislation will be deemed null and void.
Although you are not legally required to provide lunch for your domestic worker, you do have to allow an hour’s lunch interval if she is going to be working for more than five continuous hours. If you do provide lunch, then discuss this beforehand to avoid any misunderstandings. For example, if you tell your domestic to help herself to lunch, you cannot later complain if you find that she has eaten the supper you prepared for later that night. Make it absolutely clear what you expect so that you are both informed and know where your boundaries are.
Under the Labour Act, the current minimum wage for domestic workers is:
The hourly minimum rate for more than 27 hours a week is R 9.63, the weekly minimum rate is R433.35 and the monthly minimum rate is R1877.70. If your domestic works less than 27 hours a week, the hourly minimum rate for is R11.27, the weekly minimum rate is R304.29 and the monthly minimum rate is R1318.48.
If your domestic is required to work on a public holiday, that constitutes overtime and she needs to be compensated for that time. Assuming that your domestic only comes in twice a week and one of her days happens to fall on a public holiday, you can either ask her to come in on a different day of the week or you will have to pay her double her usual daily wage.
Your domestic worker has the same rights that you do with your employer and cannot simply be fired. Make sure you follow the correct procedure:
- You must provide notice in writing – one week in advance if the period of employment was six months or less and four weeks in advance if he or she was employed for more than six months.
- If your domestic worker cannot read, you must verbally explain the notice letter so that they understand.
- You must be able to provide a valid reason for dismissal.
- If you are no longer able to employ your domestic due to a change in your financial circumstances, then you are responsible for severance pay. He or she is entitled to one week of severance pay for every year of service.
- If there has been a breach of contract or your domestic has not performed their duties to your satisfaction, you must hold a disciplinary hearing before you dismiss her. You will have to provide her with written notice of the hearing at least 48 hours before it is to take place and your domestic is allowed to bring a representative to the hearing. She must also sign acknowledgement of having received the notice of the hearing. It is advisable to have a witness present. The witness could be a neighbour, your spouse or a friend. At the hearing, all accusations must be substantiated. For example, if you allege that she was drunk during working hours, you will have to provide a breathalyser as evidence.
- First published in City Press on 4 May 2014.