Hi Please help I had a domestic ladie working for me for 2 weeks living in with me this morning I asked her to watch my two boys so that I could quickly have a shower I went back downstairs and she was talking to my boys in her language (Hence my one little one is a colicky baby) so I told her sjoe this little one can scream and she answered me back I don't need to worry she has put a hex on them to stop screaming, now we are a Christian family and we don't have the same believes. I am very afraid of her now and told her to leave. I also had a problem with her I told her we don't allow strangers on the premises and told her no boyfriends allowed she didn't like the idea and left and she only returned the next morning after I had to phone her numerous times to find out where she is cause we want to lock up I eventually got hold of her and she said she is not coming home she will see me the next day, after I told her she needs to be home on sunday evenings cause our daily routine starts at 6 in the morning and she only got back here at 8. This was the second time she didn't adhere to our request and we found a visitor in her room again. She wants to take me to the ccma we don't have a contract with her and basically I have no information about her What should we do? (We live in south africa)
Good day. This is an info request to assist you better. Please continue on this thread.
Did you fire her?
We told her she couldn't work for us anymore and we gave her the reason why
Unfortunately, the Labour Relations Act states that if you want to dismiss an employee for misconduct, you have to hold a disciplinary hearing. Since you have not done this, she would be entitled to take you to the CCMA and she will probably win the matter on the basis that she was dismissed procedurally unfair.
What will happen now is that there will first be a period of negotiation before the matter will go to arbitration. This is typically where you want to stop this thing. My advice to you is to offer her two months salary and see if she will accept. If you go to arbitration, chances are that she will receive anything from three to six months salary. Especially since you fired her on a protected ground in terms of the Constitution (freedom of religion), which would carry a maximum penalty of two years salary.
but we don't have any contract or any proof that she worked for us
Obviously she would have to prove that she was your employee and a contract would greatly assist her in doing so, but the fact that there is no contract does not mean that she is not an employee.
If you entered into an agreement with her in which she will do work for you at a certain salary or wage, you and her are in an employer/employee relationship.
The only exception is if she normally work less than 24hours for you. So, if you agreed between the two of you that she will work less than 24 hours per month for you, then you are off the hook.
To be honest, the fact that there was no contract is a transgression in terms of the Basic Conditions of Employment Act and would hurt rather than help.
aarrgggg that's crap, if she only logs a case with the ccma within two weeks will the case carry on?
She has 30 days from the date of the dismissal to lodge the dispute. If, however, the claim is lodged after 30 days, the CCMA may still allow the dispute to continue if she can show that her claim has been lodged late due to no fault of hers.
L.LB, Civil and criminal litigation, contracts, labour and family law
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