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lvan lsraelstam

 

Many domestic employers are faced with the problem where their employees walk out on them due to a grievance and the go to the CCMA claiming that they have been fired. Very often the domestic employee receives advice from a trade union official and knows exactly how to convince the CCMA that the employer is a racist, unfair tyrant who has treated the worker like dirt.


The astonished employer often has no idea of his/her legal rights and no idea how to defend himself/herself at the CCMA. So, after losing the case, the employer phones me and asks for help. But by then the employer has already been ordered to pay the employee up to 12 months’ wages in compensation.


Employers are therefore warned that the best time to seek help is immediately when the employee walks out. This is so that pre-emptive measures can be taken. At the very latest the employer should seek help as soon as he/she receives the first CCMA document. This gives the labour expert the opportunity to strategise the employer’s defence.


Employers need to be aware that labour legislation is designed to protect employees. And the recent labour law amendments have added numerous rights  for domestic employees. It follows that employers need to protect themselves by acquiring the professional assistance necessary to deal with the labour laws of the South Africa and to handle CCMA disputes.


Even the most generous, caring and progressive employers have been taken advantage of at the CCMA. For example, in one CCMA case an employee alleged that he was unfairly dismissed but was unable to provide any shred of corroborating evidence for his claim. He brought no witnesses and no dismissal letter or other documentary proof of dismissal.


The employer, on the other hand, brought two witnesses who independently testified that, far from dismissing the employee, the employer had gone out of its way to look after him. The credibility of these witnesses was questioned neither by the employee nor by the arbitrator.


Despite the total lack of proof on the employees’ side and the substantial and untainted evidence of the employer’s witnesses the arbitrator found in favour of the employee. This means that whether an employee leaves due to dismissal or whether he/she leaves on his/her own accord the employer needs to follow certain processes at the time to protect itself.


Many employers make the mistake of thinking that getting expert advice is “too expensive”. However, while it is true that some lawyers charge between R500 and R1000 per hour, there are reputable labour experts whose fees are far more affordable. So the cost of obtaining expertise is often low compared to the increasingly high awards and orders made against employers at the CCMA and Labour Court.


 

In a recent case where I was involved the domestic employee walked out of her job and claimed that she had been fired. Because the employer immediately phoned for expert assistance we were able to prepare properly for the CCMA. As a result, all the employer had to pay the employee at the CCMA was her leave pay to which she was entitled anyway. It should be noted that in this particular case the CCMA conciliator was extremely efficient, disposing of the case in one hour to the full satisfaction of both parties. This level of expertise and efficiency at the CCMA makes a very big difference to the fair and constructive resolution of disputes and is highly commendable.


Domestic employers are in a unique situation. They often have domestic workers in their employ for many years and grow very fond of them. Should the once faithful employee suddenly leave them and initiate a CCMA summons the employer is often shocked into paralysis. The employer is convinced that there has been a mistake and that the CCMA hearing will quickly clear up the error. They are then doubly shocked when the employee demands 12 months salary!


Some employers just give in and pay up. This is either due to shock induced helplessness, fear of the unknown, the pressure tactics of the employee’s trade union representative or lack of awareness that they also have rights.


EMPLOYERS’ ORGANISATIONS HAVE THE SOLUTION


But domestic employers are not alone and they do have rights. Employers’ Organisations, certain of which have been set up to support domestic employers, take on these headaches on behalf of their employer members. Through these auspices domestic employers can:

  • Gain the vital moral support needed when such crises arise
  •  Get all the advice they need when preparing for a CCMA case
  •  Use a labour law expert belonging to the Employers Organisation to represent them at CCMA so as to nullify the expertise of the employee’s trade union representative.


For further details please contact Ivan Israelstam on (011) 888-7944/082 8522 973 or on e-mail address

  • Our thanks to Ivan and The Star newspaper for permission to publish this article

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