In my opinion, she would be an employee in terms of the Basic Conditions of Employment Act because she (has to) work more than 24 hours per month (whether she actually does or not)

1. I think the first thing that you need to do is to confirm with her whether she has now resigned or not. If she has, try and get it in writing, because the Basic Conditions of Employment Act require you to have it in writing. This will also protect you from further vexatious applications at the CCMA.

2. If you cannot get it in writing, to protect yourself, you need to hold a disciplinary hearing for misconduct. Even if she does not show up for the hearing, you still need to hold the hearing, how stupid that may be.

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.pdf

Basically, 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 employee
3. 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 representative

At 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.

3. The Basic Conditions of Employment Act allows you to hold back monies from an employee in three instances:

a) Where there is a court order that requires you to do so.

b) Where there is a law that requires you to do so

c) Where the employee agrees that you can do so.

What you did, unfortunately, is not covered here. In the eyes of the law, you took the law into your own hands, which is not allowed. If you wanted to claim for the sock and the shirt, you will have to do so through a civil court, which can be the Small Claims Court.

This is the cheapest and quickest way to collect a sum of under R 12 000. Nobody is allowed to use lawyers and the whole process will cost you about R 100.

The Small Claims Court is usually located at your local Magistrates Court and you should ask to speak to the Clerk of the Small Claims Court. They will assist you in issuing a letter of demand and then later a summons.

You will have to represent yourself on a date that will be given to you by the Clerk of the Court, however, this is normally after hours, which means that you do not need to take off work.

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