In our last article we discussed the provisions of leave – this time we’ll be discussing the habitual problem:
What do you do when your domestic worker doesn’t return from leave?
Whatever you do, DON’T employ somebody else! Yet!
It is important that you act within the law; otherwise you may find yourself in the awkward position of employing two people! Or worse, being taken to the CCMA for unfair dismissal; and standing to lose and being liable for a year’s salary! Scary story but it happens.
The reality is that a lot of people, who wish to leave a job, don’t always act correctly or procedurally. They prefer to just disappear (most often after the leave period). It’s partly down to culture (they are embarrassed about wanting to leave); lack of education (how to give notice correctly) and not understanding the consequences (losing a good reference). However, it leaves the employer in an awkward limbo land of “are they coming back or not?”
So what do you do?
Firstly you prepare before your employee goes on leave. Write a letter which sets out the leave period; emphasize the date that the employee is due back from leave. And place in a “Desertion” clause, which will spell out the penalties for not returning from leave on time. Coming back late from leave is unauthorised absence and not coming back is desertion. Explain this to your employee and have her/him sign this. Keep a copy for yourself and give a copy to the employee. You should also get a postal address and updated telephone numbers from your employee; have them sign that those are their correct contact details. Now, they can go on leave.
Should your employee not return on the due date, you should try to contact the employee through the telephone numbers given. If you can speak to them, you need to establish the reason for the absence and then deal with the information on its merits; you may also wish to have that information verified. I.e. the employee says that the reason that they are late is that they were in a car accident, then they need to bring in a doctor’s note to prove it.
Should you be unable to contact the employee on the telephone, the next step is to send either a registered letter or telegram to the address provided by the employee. The letter/telegram will state that should the employee not return to work within seven days of posting, then dismissal without further warning shall result. Keep a copy of the letter as well as the proof of posting. Please note that the sooner you act, the sooner you get a result; don’t wait for a week before taking action. Should the employee fail to respond, then you would send notice of dismissal.
If the employee does return, albeit late, you should give a disciplinary hearing for unauthorised absence. You would follow the procedure as set out in our previous article on leave. Unauthorised absence is an offence that warrants a written warning.
If you employ someone while your domestic is on leave, make sure that you make it clear to them (in writing) that it is a short term contract only and does not constitute a permanent job. Take the same precautions that you would with a full-time domestic; get a copy of the ID book, take down phone numbers and an address. Should you be employing the person for more than 27 hours per month, you would also have to register and pay U.I.F; even though it’s a short-term contract. For these reasons, many people prefer to use a reputable agency; more expensive but less legal obligation and hassle.
Forewarned is forearmed.