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Barend B.
Barend B., Legal Consultant
Category: South Africa Law
Satisfied Customers: 1346
Experience:  BLC LLB (Pret) LLM (Augsburg)
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My domestic worker has been diagnosed with AIDS. She used to

Customer Question

Hi, my domestic worker has been diagnosed with AIDS. She used to be a very good worker, but the last two months have been extremely difficult. I'm paying her per day (R170), and she works from 06h30-13h15. She asked me if she could bring here sister to work on Wednesday because she's too sick to work; I said it's ok. Then on Thursday (without asking me) she brought her sister again. I was surprised and mention that when I opened the door; and then they sat down and said they want to discuss payment. I said I will pay you as usual, and you should obviously then give a day(s) payment to your sister, because she is not working for me, you are, and you said you are too ill to work, it's not fair to think that I should pay both of you, then there was no need to bring your sister??
She worked for another lady 2 days a week; that lady just contacted me saying that my domestic worker says that I said she is spreading germs in my house; she coughs a lot every day without covering her mouth, and a few days back I've asked her to please cough in her hand or elbow not to spread coughing germs in the air! The comment had nothing to do with AIDS!! Firstly I'm so disappointed in her discussing me with her other employer, and secondly, I'm a registered nurse doing TB research now for several years; my comment was the same as I would say to my own children and any other person coughing in a way you could harm others, even with flu germs! Finally, she's working for 3 days a week for me, since May 2015, and her work over the last 2 months are poor. What can I do to retrench her in a honest way so she cannot take me to the CCMA. Thank you!
Submitted: 12 months ago.
Category: South Africa Law
Customer: replied 12 months ago.
Please send the answer to my home e-mail address:***@******.***, thank you!
Expert:  Barend B. replied 11 months ago.

Good evening,

When an employee is too ill to work, it always presents a problem. Is the illness affecting her work performance? Has she used up all her sick leave? Just because she has AIDS is no reason to dismiss her or medically board her. I suggest that you explain to her that an employment contract puts rights and responsibilities on both parties. Part of her responsibilities is to do the work that she has been employed for. If she is unable to do the work because she is ill, and the illness is for a long duration, then certain options are open to you as employer. If she is a valued employee, you can grant her unpaid sick leave when her sick leave runs out until her condition improves to such an extent that she can do her work again. But the best course of action in my respectful opinion would be to send her to an occupational health medical practitioner and ask to determine hr medical fitness to do the work she has been employed for, what the prognosis on recovery is, and whether, if she is declared medically unfit, her unfitness would be permanent or temporary. If her illness will cause her to be absent for an extended period (according to the report by the occupational health medical practitioner) then you will be entitled to end her employment due to medical unfitness. As long as you do a thorough investigation and follow reasonable and fair procedures, you should be fine if scrutinized by the CCMA. There is no magical procedure to avoid being taken to the CCMA. Anyone can take you to the CCMA, regardless of the merits of the case. But the CCMA determines a dismissal on 2 grounds, namely whether there was a substantive reason for the dismissal (and if the report says she is going to be unfit for an extended period, it would be a substantive reason) and procedural fairness. If you explain all the steps you are taking to determine whether she is medically fit to do the job, and gives her an opportunity to give her input, and you then consider her input, then it should also pass the procedural fairness hurdle.

Should anything in the above response be unclear or you require me to elaborate on certain aspects, do not hesitate to ask me further questions.

Regards,

BB

Expert:  Barend B. replied 11 months ago.

Good day,

If you have any other questions regarding your query, I'll be happy to answer them.

Regards,

BB