Quote from media report on 21 May 2010
“Johannesburg – Baby Marzanne Kruger’s nanny Franscina Sekhu has not been fired but will face a disciplinary hearing, the family’s lawyer said in a statement on Friday. The family also now announces that it has properly and duly convened a disciplinary tribunal in terms of the prescript of Labour Law, notice of which has duly been given to Sekhu yesterday (Thursday),” Pieter van R Coetzee said. The family would not comment further on the matter”.
This horrific incident provides a useful case study of how employment legislation safeguards the legitimate rights of employers whilst protecting most employees. Domestic workers have only enjoyed protection since 1996.
Prior to 1979 parliament did not provide any protection to any employees against unfair, as opposed to unlawful, termination of employment. Since then employers must prove not only that there was a fair procedure but also a valid reason to terminate employment. The nature of a fair procedure depends on whether the reason relates to (a) the employee’s conduct or capability (health, injury, performance, ability or suitability) or (b) is based on ‘operational requirements’. That concept is defined as “economic, technological, structural or similar needs of an employer”. It will be readily appreciated that when dealing with an employment relationship between the parents of a child and a domestic worker reliance would probably have to be based solely on ‘similar needs’.
What options do the parents have in a case like the one under discussion? Leaving aside fair procedures it seems that the reason to terminate could be a combination of the three so-called ‘categories’. If, as has been reported, the domestic worker allegedly allowed unauthorised persons into the home, the reason could relate to conduct. In addition the domestic worker may have failed to perform the job properly. But the reason could also be based on the ‘operational requirements’ of the employers, the parents, as there has to be a high degree of trust and confidence in the ability of the domestic worker to do the job properly. There is no reason in principle why the parents should not adopt an approach that combines all the above issues.
In SABC v CCMA (Khoali) [Pretorius [PJ] AJ, 30.12.2005]  6 BLLR 587; (2006) 27 ILJ 1519;  JOL 17073 (LC) an important point was made:
“… the notional line between the various circumstances that could give rise to a fair dismissal … is not always easy to draw. Often the same conduct may give rise to more that one appropriate categorisation. Employers may often, not unreasonably, err in their attempts to categorise the circumstances giving rise to a potential dismissal. The failure to correctly categorise should not however detract from the appropriate inquiry in each case, namely, to assess first, whether there was a substantively fair reason for dismissal and second, whether an appropriate and fair procedure was followed by the employer”.
Without knowing all the facts it is suggested that the parents could combine a procedure that complies with the statutory requirements of section 189 of the Labour Relations Act 66 of 1995 [LRA] and the Code of Good Practice in schedule 8 to the LRA. All the factual allegations/averments need to spelt out to enable the domestic worker to exercise the right to respond but there could also be an appropriate notice and consultations about the contemplation of termination based on ‘operational requirements’.
Having complied with all the relevant fair procedures and having considered the domestic worker’s responses and the personal circumstances the parents would be able to take a final decision but must ensure that it is a ‘fair reason’ as required by the LRA.
If the parents decide the domestic worker has materially breached the employment contract the parents could terminate it summarily (without notice or payment instead thereof as required by the Basic Conditions of Employment Act 75 of 1997 [BCEA] and the common law). See further in this regard my recent contribution entitled HC: Maroga v Eskom – unlawful termination of employment – just because & just cause and the earlier similar posts on the website.
But the parents could also decide it is no longer possible to continue employing the domestic worker because of their legitimate ‘needs’. The parents would have to pay not only the amount that would have been earned during the notice period (probably four weeks) but also ‘severance pay’ of at least one week for every year of continuous service calculated on the final salary/wage in terms of section 41 of the BCEA.
There is no need for the parents to ‘charge’ the domestic worker with an act of misconduct nor find the domestic worker ‘guilty’ of anything. They only need to list the allegations/averments in a written notice to the domestic worker and invite a response to each averment.
It is assumed the parents have complied with section 29 of the BCEA and provided the domestic worker with the statutory particulars forming the basis of the employment relationship, including a proper job description.
Briefly the list of allegations/averments related to conduct or capacity/capability could include the following:
- You have been employed since ***** to care for our young child.
- You know that for most of the day during the week neither of us are at home.
- During or about ***** you failed to obey a specific instruction to deny access to our home to any unauthorised persons and allowed one or more such persons to enter our home.
- On or about ***** in further breach of your contract of employment you again allowed unauthorised persons to enter our home.
- As a direct consequence thereof our child, whom you were contracted to care for and protect, was brutally assaulted and suffered serious physical injuries, some of which may be of a permanent nature.
- In the circumstances you have destroyed our trust in you and we no longer have any confidence in your ability to do the job properly.
It must be assumed that in the absence of a very good explanation by the domestic worker the parents could prove that the trust relationship has been destroyed and an ongoing relationship would be intolerable. Their confidence in the domestic worker’s ability to perform the job properly will also have been destroyed.
But if the parents are in any doubt about their ability to prove the allegations in an arbitration they might be well advised not to rely on a material breach of contract and rather base their decision or reason to terminate employment on their ‘operational requirements’. In that event the parents should be prepared to pay the notice pay and severance benefit. It is hard to believe that any arbitrator or judge would fault the parents for terminating employment in that manner and for that reason given the very unfortunate circumstances.