I HAVE A GARDEN GUY HELPING ME OUT FOR THE PAST 6 YEARS.WE NEVER HAD A CONTRACT EXCEPT FOR VERBAL AND HE NEVER CLOCKED IN OR OUT.THE AGREEMENT WAS THAT HE WILL WORK ON THURSDAYS FROM 7 TO 4 AND HAVE 2 TEA BREAKS AND 1 LUNCH TIME. I NEW HE AND THE LADY IN THE HOUSE NEVER REALLY STICKED TO THE HOURS BUT NEVER COMPLAINT ABOUT IT.IN THE BEGINNING OF THIS YEAR HE GOT A FULL TIME JOB AT A COMPANY AND ASKED IF HE COULD COME ON SUNDAYS. HE STARTED MOST OF THE TIMES ONLY AT 8H30 AND THEN LEFT BETWEEN 2-3. I ALWAYS TOOK HE TO THE VEREENIGING TAXI DEPO. HE NEVER COME TO WORK ON SUNDAYS MORE THAN TWICE A MONTH AND SOMETIMES ONLY 1 IF I WAS LUCKY. SEVERAL TIMES I HAVE TOLD HIM THAT THE GARDEN CANT BE WITHOUT A REGURLAR WORKER. AND SEVERAL TIMES I TOLD HIM NOT TO SKIP THE JOB . WITH SUMMER AND RAIN THE GARDEN NEEDS SOMEONE FULL TIME. ALWAYS HE PROMISED JUST NOT TO ROCK UP NEXT WEEK. ABOUT 3 WEEKS AGO I COMPLAINED TO A CO-WORKER ABOUT THE SITUATION AND HE OFFERED I USE ONE OF OUR WORKERS. THIS GUY HELPED ME THE SATURDAY AND THAT SUNDAY MY GUY ROCKED UP FOR WORK. THERE WAS NOTHING FOR HIM TO DO BUT STILL I PAID HIM HIS DAILY FEE AND TOLD HIM TO DO ODDS AND ENDS AROUND THE HOUSE. THEN 2 WEEKS AFTER THAT HE SENT ME AN SMS SAYING I MUST GET HIS UIF MONEY READY FOR COLLECTION AND SINCE THEN HIS BEEN HARRASING ME. WHAT AM I TO DO. HE ALSO BORROWE ABOUT R3000.00 RAND WHICH HE SIGNED FOR AND NEVER PAID BACK A SENT OF IT. PLEASE HELP ME - I WAS ALWAYS JUST GOOD TO HIM. HE SUGGESTED THE WORK ON SUNDAYS AND I AGREED TO IT BECAUSE I REALIZED THAT HE NEEDS MONEY IN THE MIDDLE OF THE MONTH.
I ONLY TOLD HIM THAT OUR CONTRACT (VERBAL) WAS THAT HE MUST WORK ON THURSDAYS AND THAT THE WORK ON THOSE GROUNDS ARE STILL AVAILABLE. THAT I WAS NOT THE ONE CHANGING OR NOT COMING TO WORK
This is an info request to assist you better. Please continue on this thread.
Did he work less than 24 hours per month?
AT THE BEGGINING IT WAS ONCE A WEEK FROM 7 TO 4 (SUPPOSE TO BE)
BUT SINCE THE BEGGINING OF THIS YEAR ABOUT FEB / MARCH IT WAS SUPPOSE TO BE EVERY SUNDAY (HIS RULING) BUT THAT NEVER HAPPEND MOSTLY IT WAS ONLY ONCE A MONTH OR MAYBE MAYBE TWICE A MONTH SO NO .
Let me put it differently: Was he required to work more than 24 hours per month?
REQUIRED HE WAS SUPPOSED TO WORK FROM 7-4
AM I WRONG IF I SAY THAT MY CONTRACT WITH HIM ENDED WHEN HE STOPPED COMING TO WORK ON THE AGREED THURSDAYS.
Yes you are and this is by agreement. In other words, he basically resigned on that contract and entered into a new agreement with you that he will work Sundays.
So, in terms of this new agreement, was he still required to work 7 - 4 every Sunday of the month?
NO - START 8H30 TO ABOUT 2
Final question: Did he resign from this Sunday employment as well?
NO HE NEVER RESIGNED - JUST COME WHEN EVER HE WANTS
According to my calculations, he does not work 24 hours per month on average. Or better put, he is not required (at his own insistence it would seem) to work more than 24 hours per month. The Basic Conditions of Employment Act is therefore not applicable to him and also not the UIF Act.
It would seem as if the Labour Relations Act might still be applicable and if you want to dismiss him, you would still have to follow a disciplinary procedure.
thanks - so if he doesnt come to work on sunday coming can I sent him an sms as 'n written waring - and how many warings before dismissal?
There is no set amount of warnings before you can dismiss. If this is a regular thing and it is clear that the written warning is not sufficient, then you can dismiss.
If you give him a warning, you must give him a time within which to explain why the warning should not be upheld. If he can offer a reasonable and truthful explanation, then you must consider retracting the warning.
If you want to dismiss, the procedure is a bit different.
The South Africa Labour Legislation require that, before you can dismiss an employee, it must be for a fair reason, following a fair procedure. The Department of Labour has issued a Code of Good Practice which stipulate the minimum requirements for fair procedure and a list of fair reasons. This can be accessed at http://www.workinsolutions.co.za/downloads/Code%20of%20Good%20Practice%20-%20Dismissal.pdfBasically, with regard to fair procedure, it normally entails a disciplinary hearing. In order to conduct a disciplinary hearing, you would have to give the employee notice of such a hearing. The notice must contain the following information:1. The date, place and time of the hearing.2. The charge against the employee3. The employees rights, which would include:• The right to present evidence.• The right to present witnesses• The right to cross examine the witnesses of the employer and the evidence of the employer• The right to be represented by a co-worker or a union representativeAt the hearing itself, the best practice would be to get an expert in to assist you, preferably someone impartial, however, if the cost of this is an issue to you, then you can ask someone to chair your disciplinary hearing, however, it is imperative that such a person exercises his judgment impartially.A hearing will normally follow the same procedure as a trial at court, just a lot more formal. The employer will be given an opportunity to prove the charge and the employee will be given an opportunity to state his/her side of the story. Both employer and employee are allowed to cross-examine each other's versions as well as the versions of each of the witnesses. Once the presiding officer has come to a decision, the employer and employee has to be informed of the decision in writing.It is imperative that the employer as well as the chairperson take detailed notes of the proceedings and to store this for at least a year.Note that this is not the only procedure, but this is the most appropriate procedure in most instances. The Act does allow for an even more informal procedure, where the employer both chair the hearing and act as prosecutor, however, this should only be employed where the issues are not complex.
L.LB, Civil and criminal litigation, contracts, labour and family law
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