Fairness of dismissal

FACT – “Domestic workers are the third highest referring group to the CCMA”*
Section 188 of the Labour Relations Act provides that, to be fair, a dismissal that is not automatically unfair must be for a fair reason and in accordance with a fair procedure.

From experience it is very clear that domestic workers and their employers still have a few years to develop structures and practices to ensure that disciplinary action and ultimately dismissals take place on even ground.

In the commercial environment, employees are generally included in stronger collective structures through either workplace forums or trade union affiliations and when an employee is charged by his employer, he has a structure to count on to assist him through the disciplinary procedures in terms of the employer’s disciplinary and grievance procedures.

In the domestic industry the domestic worker is in a much more vulnerable position in that she normally does not have any structures to assist her and is therefore quick to head to the CCMA. An analogy can be drawn between a spouse heading straight for the divorce courts before trying to mend the relationship, because he or she has no other options available.

The parties live/work very closely and the slightest allegation by an employer against the domestic worker is personalised and all too quickly results in both parties feel that “things will never be the same”. Employers commonly react with a belief that the relationship has been damaged beyond repair. Domestic workers, on the other hand, feel offended and insulted when the employer serves her with a warning or a notice to attend a disciplinary hearing.

Restoring trust
Instead of embarking on a path that is likely to destroy the relationship, it is possible for the parties to rather explore ways to restore trust and even strengthen the relationship. However, at this stage it is generally extremely difficult, if not impossible, for the employer and the employee to try and conduct constructive discussions with the aim to amicably resolve the situation themselves. It takes a very skilled chairman to conduct a proper disciplinary hearing or consultation.
The role of external facilitators and chairpersons, in my opinion, is crucial to assist the domestic industry in developing industry norms, practices and case law, since the labour management principles developed over more than a decade are not universally applicable to the domestic worker industry.

Elements of a fair dismissal procedure that requires clarity are, amongst others;
• Preparation for the hearing
• Representation
• The imbalance of power in the hearing and ability to cross examine
• The feeling by domestic workers of total dependency on the employer.

Until the domestic worker industry catches up with its counterparts in the commercial sector, it is suggested that employers should endeavour to apply maximum fairness, which includes:
1. Inform your domestic worker of the hearing in a form and language she can understand. State the reason for the hearing and when it will take place.
2. Ensure that you give her reasonable time to prepare for the case.
3. Preferably appoint an independent party to preside over the hearing
4. You will first explain your case
5. Your employee can then question you and any witnesses.
6. Then your employee explains her case in defence.
7. You can question your employee and witnesses.
8. The chairperson must take time to consider the evidence and make a decision.
9. The hearing re-convenes, a ruling and decision on disciplinary action is made.
10. Keep a record of the proceedings.

Amongst these 10 points are huge challenges and much is still to be said and argued in the CCMA, our Labour Court, Labour Appeal Court and even Constitutional Court regarding fairness in this unique industry.

By Albert van der Merwe, labour consultant and director of Maid4U

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