Dismissal for misconduct is a fault dismissal based on the domestic worker’s conduct (either in the form of an act or an omission).

 A misconduct dismissal is dependent on the following:

• that the facts establish that the employee is guilty of misconduct on a balance of probabilities (i.e. it is more likely than not that the employee committed misconduct); and

• that the misconduct is severe enough to justify the sanction of dismissal.

Minor Misconduct

The Code of Good Practice: Dismissal provides that dismissal is not an appropriate sanction for a first offence except where that offence is so serious that it renders the continued employment of the domestic worker ‘intolerable’.

Consequently, it is ill-advised to dismiss a domestic worker for a first-time minor offence (i.e. tardiness / accidental breaking of property / etc.)

For minor offences, progressive discipline is more appropriate in the form of verbal and written warnings.

Verbal warnings should be recorded in a notebook or diary to evidence progressive discipline. For example, arriving late may warrant a verbal warning.

For repeated offences or more serious infractions, written warnings may be issued confirming the nature of the misconduct and warning the domestic worker that further similar misconduct may result in a dismissal (a copy of the written warnings must also be kept by the employer).

For example, where a domestic worker has been repeatedly verbally warned concerning his or her late arrival but continues to arrive late a written warning may be appropriate.

Written warnings are only valid for a reasonable period (depending on the nature of the misconduct). The period in which they operate should be recorded on the written warning itself.

Click to download a sample written warning

If the misconduct continues after a written warning, then final written warnings can be issued. Final written warnings can also be issued in the first instance where an incident of misconduct warrants a final warning but not a dismissal.

Click to download a sample final written warning which can be customized and edited in accordance with your needs.

Domestic workers who continue to commit misconduct notwithstanding the warnings / final warnings that have been issued may be dismissed. The process set out hereunder for serious misconduct should be followed.

Negligence

Negligence refers to an employee’s failure to meet a reasonable standard of care either through an act or an omission (i.e. where the misconduct was not deliberate).

The test for negligence is whether a reasonable person in the employee’s position would have foreseen the harm/loss that could have resulted from his/her act or omission but failed to take reasonable steps to guard against such harm/loss.

Often the basis for disciplining an employee for negligence is that the employer suffered harm/loss, however the mere risk of harm or loss is also sufficient to discipline a domestic worker for negligence.

Negligence can either be minor or ‘gross’. An example of minor negligence would be where a domestic worker accidentally bleaches clothes rendering them unusable or leaves a garden tap running.

‘Gross’ negligence occurs where there is extreme risk taking or a total failure to take care. If, for example, a domestic worker left a minor child in his/her care unattended for a significant period of time that may constitute gross negligence.

Mere negligence does not warrant dismissal in the first instance. Where there is gross negligence, however, that usually does warrant dismissal for a first offence.

For cases of gross negligence, employers should follow the procedures for serious misconduct set out below.

Dismissal: Serious Misconduct & Gross Negligence

For instances of repeated misconduct (i.e. where progressive discipline has failed), or where misconduct is so serious as to warrant dismissal, it may be necessary to dismiss a domestic worker.

Misconduct involving gross dishonesty, gross negligence, wilful destruction of property, wilfully endangering the safety of others, physical assault and/or gross insubordination are usually sufficient to justify a dismissal in the first instance.

If, for example, a domestic worker is involved in theft of the Employer’s property, that would constitute gross dishonesty on his/her part and would render continued employment intolerable. Dismissal would then be justified.

A domestic worker is entitled to the right to be heard before being dismissed. The Code of Good Practice: Dismissal envisages a less formal approach to discipline for smaller employers in this regard.

Given the nature of a domestic worker’s employment, it would normally be inappropriate and unnecessary to conduct a formal disciplinary enquiry involving a Chairperson, charge sheet, witnesses, etc.

Rather, what is required prior to dismissing a domestic worker is the following:

• the allegations of misconduct are put to the domestic worker in a form and language that he/she can understand (this can be done either verbally or in writing);

• the domestic worker should be afforded sufficient time to consider the allegations, to prepare a response and to state a case in response to the allegations;

• the response / case of the domestic worker should be seriously considered by the employer in light of the evidence of misconduct (the employer should weigh the case of the domestic worker against the evidence of the misconduct to make a finding as to which is more likely);

• if the domestic worker is found guilty of the misconduct then, before deciding to dismiss him/her, the employer should also consider the domestic worker’s circumstances (i.e. length of service, previous disciplinary record and personal circumstances such as dependants) and the nature of the infringement;

• after considering the above, the employer should communicate the outcome to the domestic worker. If the employer decides to dismiss a domestic worker, this should be done by way of a notice of termination of employment. If the employer decides on a lesser sanction, this should be communicated in writing to the domestic worker (i.e. in the form of a final written warning);

[It is advisable to record the above process on a smart phone or recording device in order to avoid a dispute regarding what transpired. The domestic worker should be notified that the process is being recorded].

Dismissal can either be done on notice (i.e. where the employee is issued with a notice of termination but his/her employment only terminates after the expiry of a notice period) or on a summary basis (i.e. no notice period is afforded to the employee). Instances of serious misconduct such as theft justify summary dismissal where no notice period would be applicable.

Upon dismissal for misconduct, the employee is entitled to the following payments:

• all outstanding monies due (i.e. for public holidays, wages, overtime, etc.);
• all outstanding annual leave; and
• notice / payment in lieu of notice (unless the employee is summarily dismissed).

When a domestic worker is dismissed, a notice of termination must be issued together with a certificate of service.

Click to download a sample notice of termination of employment and a sample certificate of service which can be customized and edited in accordance with your needs.

Employees who are dismissed are entitled to claim UIF Unemployment Benefits (click to see Chapter 7).

Summary of Dismissal Procedure

The following table provides an example of the steps to be taken in a dismissal for misconduct:

MISCONDUCT DISMISSAL PROCEDURE (SUMMARY)

Step 1:	Conduct Disciplinary Enquiry.   * Remember a disciplinary enquiry of a domestic worker is not a trial. All that is required is for a domestic worker to be heard in relation to the alleged misconduct and the evidence considered prior to being dismissed.
Step 2:	Put allegations of misconduct to domestic worker in a form and language that he/she can understand (this can be done verbally)             e.g. it is alleged that on [date] you removed tools from the home without permission and those tools are still missing. You are required to provide an explanation for that misconduct. You can do so immediately or you can have until [time] this afternoon to consider your response before giving an explanation [ensure that sufficient time is given].
Step 3:	Once the domestic worker has been given time to prepare, advise the domestic worker of the evidence against him. * You may wish to record this discussion and advise the domestic worker that you are doing so. The domestic worker should also be allowed to record the discussion if he/she wishes to do so. e.g. I observed that the tools were present before you arrived at work. You were the only person with access to the tools.   The CCTV at the security gate showed you leaving the estate with a large bag on the same day. You do not normally bring a bag to work and no other persons were present at the home on the day the tools went missing. * Permit the domestic worker to state a case in response to allegations. e.g. I did not remove the tools. Someone else must have done so. I only had clothes in the bag.
Step 4:	Consider the evidence:   A determination must be made as to whether it is more likely that the domestic worker committed the misconduct than did not commit the misconduct (i.e. on a balance of probabilities).   Remember that if a dispute is referred to the CCMA, your assessment of the evidence may be tested and so you should attempt to assess the evidence dispassionately.   You should not act too hastily and should ask the domestic worker to leave and return on a subsequent day to give you an opportunity to consider everything.   In the example set out above, the probabilities clearly suggest that the domestic worker is guilty of removing the tools (it is more likely than not that the domestic worker removed the tools) and so the domestic worker should be found guilty.
Step 5:	Make a finding on guilt in light of the evidence. * If the domestic worker is found guilty, consider what sanction to give with reference to the domestic worker’s circumstances (length of service, previous disciplinary record, dependants, etc.). * Remember that previous unrelated disciplinary warnings should not be used to justify the dismissal (i.e. if the domestic worker is on a written warning for tardiness that should not be used to justify a dismissal for theft). * Serious misconduct such as theft, gross negligence, or dishonesty will usually justify a dismissal notwithstanding the circumstances of the domestic worker.
Step 6:	Advise the domestic worker of the finding on guilt and the sanction. e.g. I have considered all of the evidence and your explanation and I find that you are guilty of the misconduct. I have considered your circumstances but given the nature of the misconduct you are summarily dismissed / dismissed with immediate effect.   * Issue a notice of termination. Click to download a sample notice of termination available together with this manual   * Issue a certificate of service. Click to download a sample certificate of service available together with this manual. * Make use of the uFiling portal to confirm the termination of the domestic workers employment. Click to download the uFIling guide available together with this manual.