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CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1535
Experience:  BCom; LLB; Masters in Law
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South Africa: My family has decreased from 5 to 2 members

Customer Question

South Africa: My family has decreased from 5 to 2 members two years ago. I proposed a reduction in working days to my domestic, reducing her working days from five days a week to two days a week. She did not want that. She comes in later than required and leaves earlier than required. May I unilaterally change her working days from 5 to 2 after again explaining the situation? Or must I retrench her and then reappoint her? Kindly advise. thank you.
Submitted: 1 year ago.
Category: South Africa Law
Expert:  CaseLaw replied 1 year ago.

Hi there and thank you for your question,

I will try to assist you with your legal question but please feel free to ask as many follow up questions as you like until you are 100% satisfied.

It sounds to me though you have two choices: (1) Give your domestic a warning for not sticking to her agreed upon working hours; or (2) reduce your domestic's working days as a result of your operational requirements.

Re: (1) the warning route -- You'll need to give her 3 warnings before you can dismiss her, but there is nothing stopping you from giving a warning on Monday, Tuesday and Wednesday if she does not stick to the agreed upon working hours for those days. You can then dismiss her on the Wednesday afternoon. If she refers a dispute to the CCMA, you'll need to prove that she has working hours, and that she didn't stick to them, and that she received warnings as a result, and that the third warning was sufficient to dismiss her. You'll need to ensure that her dismissal is both substantially fair and procedurally fair, and for this reason you should read the code of good practice on dismissals here: http://www.ccma.org.za/Display.asp?L1=34&L2=69

Re: (2) reduce your domestic's working days as a result of your operational requirements -- if there are legitimate reasons for reducing an employee's working days/hours, then you can follow the code of good practice on operational requirements (http://www.ccma.org.za/Display.asp?L1=34&L2=67) in order to do this. This will entail an engagement with the employee to discuss it, and to try reach an acceptable solution. If one can't be found, then you are entitled to go ahead anyway with the reduced working days.

Basically, you can achieve what you want to achieve, and there are 2 routes. Perhaps you should discuss the two routes with your domestic and come to an agreement with her. Also, it might assist her if you try to find her work for the other 3 days of the week. After all, she is most certainly worried about her earnings!

If my answer hasn't answered all of your questions, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - dont just rate my answer as "bad".

If my are HAPPY with my answer then please click one of the STAR ratings or the SMILEY FACES to rate my answer!

Good luck and best regards,

CaseLaw

Customer: replied 1 year ago.
Dear legal counsillor
I refer to your suggestion to my original question (2) reduce your domestic's working days as a result of your operational requirements -- if there are legitimate reasons for reducing an employee's working days/hours, then you can follow the code of good practice on operational requirements (http://www.ccma.org.za/Display.asp?L1=34&L2=67) in order to do this. This will entail an engagement with the employee to discuss it, and to try reach an acceptable solution. If one can't be found, then you are entitled to go ahead anyway with the reduced working days.
I am confused. You say that if my consultation with my housekeeper is not positive I can in any case proceed with reducing her work hours, and that I must follow the above reference to the CCMA in respect of the code of good practice. I looked at this code and it only deals with dismissing or retrenching an employee if the operational situation changes. I DONT WANT TO RETRENCH OR DISMISS MY HOUSKEEPER. I want to retain her services but reduce her weekly working days from five to three. Can I reduce her working days without retrenching her, and if yes, is there a compensation must I pay her any form of compensation? According to the local Department of Labour I must retrench her, pay a week salary for every week worked and then re-appoint her on a new contract. I don't want to do that. Please advise me. Many thanks.
Expert:  CaseLaw replied 1 year ago.

Hi there,

Reducing your domestic's working days as a result of your operational requirements is still a valid option to reduce the working hours. The only OTHER way to do it, would be by agreement. You're not technically retrenching her, you are simply amending her employment agreement (fewer working hours) as a result of operational requirements. You can only do this, obviously, if there are valid grounds to do this - and in my opinion there are in your case. This is what you need to do.

Regarding the compensation. If you reduce her working hours by 60% (i.e. from 5 days a week to 2 days a week) then you would reduce her salary by the same amount. If she was earning R5000 per month (round figure) then she would now earn R2000 per month. Does that make sense? You are only entitled to reduce her salary if it is by agreement, OR because of operational requirements as detailed above.

Does that assist further?

Customer: replied 1 year ago.
Many thanks. Please can you advise what I need to do with the existing service contract? Do I add an addendum that states that I have consulted with the worker and that I have informed her that with one month's notice her work week is amended from 5 days per week to 2 days per week, with her remuneration adjusted accordingly? What do I do if she refuses to accept the situation? I will obviously do everything in my power to promote her services as far and as wide as possible. I do not wish for her to be worse off in future as it would not be fair. Your advice on my proposed way forward? Thank you.
Customer: replied 1 year ago.
Do I understand you correctly that if I follow the above suggestion that I am not liable to pay her any compensation? I simply reduce from 5 to 3 or 2 days per week?
Thank you
Expert:  CaseLaw replied 1 year ago.

Do I add an addendum that states that I have consulted with the worker and that I have informed her that with one month's notice her work week is amended from 5 days per week to 2 days per week, with her remuneration adjusted accordingly? --> Yes.

What do I do if she refuses to accept the situation? --> Then you will most probably need to retrench her if she won't accept the situation, since she won't be happy if you unilaterally amend the agreement.

You'll understand that even though you might follow the right course, she might still be upset.

I don't know the best route to promote her services elsewhere. Perhaps Facebook?

Regarding the compensation, I thought you were asking about her salary. If you're asking about her retrenchment compensation, then yes, you'll need to pay her 1 week's salary for each year she has served - pro rata taking into account that you're not paying her 100% compensation, but rather 40% because she's moving from 5 days to 3 days.

Customer: replied 1 year ago.
Are you saying that reduction of her work hours must be approved by her. If she disagrees then the only akternative is to retrench her?
Expert:  CaseLaw replied 1 year ago.

Yes.

Expert:  CaseLaw replied 1 year ago.

Please don't forget to rate my answer! If you don't rate it, I won't get any credit for it - so please rate it!

Expert:  CaseLaw replied 1 year ago.

Hi there again,

I hope that you understood the above advice and that it was useful? Please leave positive feedback for me.

If you have a further question please ask it?

Regards

CaseLaw