It is important to note that these provisions only apply to employees who work more than twenty-four hours per month for a particular employer. It is also important to note that there are other particulars of employment mentioned in Section 29 of the BCEA, which are not mentioned here because they do not apply to domestic workers.

It should also be stated that any employment contract is subject to current labour legalisation and any clause which are in conflict with such labour legalisation will be held to be void and unenforceable. This is important when specifying rates of overtime work, leave due and the notice period applicable. Currently there is no minimum wage determination for domestics and therefore, your domestic’s basic salary lies within the employers unfettered discretion.

A warning

As mentioned above, we have had many requests for a pro former contract. However, we are reluctant to provide our readers with one, for the simple reason that such contracts can create more problems than they solve. Any contract, including a contract of employment must be tailored to one’s particular circumstances and must be drawn up by an expert, if one is to avoid problems.

An interim agreement

DEAR .............(NAME OF DOMESTIC WORKER)

In terms of the current labour law, I am required to provide you with a letter of appointment. This letter servers to confirm that:

This letter of appointment is an interim arrangement and a fully detailed final contract will be given to you after I have sought professional advice and have consulted with you.

This letter of appointment is also a written codification of a preexisting arrangement and in no way changes the terms and conditions of the employment relationship you have enjoyed to date.

Yours sincerely

Points to remember

This issue must be approached with sensitivity or you will encounter problems. It is essential to discuss the letter of appointment with your domestic before giving it to him or her. If there is a language barrier, try to get a friend or family member of your domestic worker to interpret and explain.

However, don’t be surprised or insulted if your domestic worker refuses to sign, in my experience, domestic workers are very suspicious about new developments. It might even be a good idea, if your domestic belongs to a trade union, to get a union official to explain the process to your domestic.

The bottom line is that, an employer of domestics must be careful when it comes to contracts of employment.

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Small business and unfair labour practices

Some of these complaints are valid and have been borne out by decisions handed down by CCMA commissioners. Part of the problem is the belief among many employees that they can never be disciplined and if they are dismissed for any reason it is seen as unfair.

The CCMA is so overloaded with cases that it does seem as though they take the easy route. This means they throw money at the problem - the employers money. The easiest way to rid themselves of the case load is to convince the employer to hand over some money no matter the merits of the case.

But, employers are not blameless. Many of the cases brought before the CCMA do not have a legal basis in the sense that the employee is plainly in the wrong, but the basis of the case rests on the fact that correct procedures are often not followed by employers.

The Labour Relations Act is very clear on the procedure to be followed in all aspects of the employer/employee relationship. It provides for mechanisms to be followed in the event of a dispute and clearly shows which is correct or incorrect procedure. It is the abuse of this procedure that creates a climate in which the CCMA is seen as a useless and non-performing body.

An example is useful:
An employee is caught stealing goods from his employer. The employer flies into a rage (some would say rightly so) orders the employee into his office and fires him. The employee then goes to the CCMA, a hearing is held and the employee walks away smiling with money in his pocket. This is not because he is innocent but because the correct procedure was not used in his dismissal.

In dismissing an employee a fair and impartial hearing must be held. The employee must be given notice of the date and time of the hearing and the employer must ensure that the employee is given a reasonable time to prepare for the hearing.

Representation at the hearing must be allowed and the employee must be allowed to call as many witnesses as is necessary. The employer is duty-bound to give fair warning of his intention to hold the hearing and is also duty-bound to ensure that the employee understands the charge or charges against him.

The Labour Relations Act stipulates that all proceedings must be held in plain language without the legal speak found in court rooms. All the proceedings should be recorded in writing or with the help of a tape recording and the minutes signed by the employee, employer and representative.

If an employee is found guilty of this offence it does not mean that he should automatically be fired. His past record will have a bearing on a decision and the employer is in fact bound to consider the employees past employment record in mitigation of the sentence to be passed.

Most importantly it must be remembered that even if an employee is patently guilty and procedure is followed to the letter and he is dismissed, he still has a right, by law, to refer his case to the CCMA. Following procedures as laid down by the Labour Relations Act is not a sure-fire way of avoiding the CCMA, but it does create a sound basis for any employer to defend an action brought before the CCMA.

It is important for employers not to fear the CCMA. This leads to an acceptance of a workers level of competence no matter whether it is good or bad. This in turn leads to the drop in standards and the levels of productivity that any successful businessperson seeks to avoid.

Beware of scams

Because these laws are new and many employers are unsure as to what they are required to do and have by law, they are easy targets for salesmen hawking what turn out to be nothing more than smartly bound copies of current labour legislation for hundreds of rands. (This type of offering should be distinguished from the many other useful handbooks for sale.)

Here is what you need to have if you employ one or more people:

Copies of these are available for free via the Internet.