AWOL – MY DOMESTIC WORKER IS CONSTANTLY ABSENT

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AWOLAWOL – Those of us privileged enough to have a domestic worker will know, they become part of the family and they keep things in shape while we are at work.  Luckily the law has been amended to include domestic workers, even though it is far from perfect and needs more amendments to ensure domestic workers are treated with the respect they deserve.

Having said that, the sad truth is that in 2012 only 48% of employers were compliant with laws governing domestic workers. While, admittingly, it is now 6 years later, I am not convinced that there was any significant improvement in compliance.

This brings us to the purpose of this post, an important issue that presents itself to most employers of domestic workers – AWOL (absence without leave).

HOW DO I HANDLE CONTINUOUS ABSENCE FROM WORK?

The South African reality is that our domestic workers must travel to get to work.  They travel far, in dangerous circumstances, for a long time every day.  They even spend a great portion of their income on traveling.  They are exposed to taxi strikes, taxi violence, to crazy speeding taxi drivers, and even sabotaged trains.  So, it will be appropriate and humane to be a little flexible when it comes to enforcing exact working hours.

However, what to do in cases where you suspect your employee is taking chances?  As tolerant as any kind-hearted employer can be, we need the job done and thus we need our domestic worker at and on the job.

What can one do if the mostly reliable domestic worker suddenly goes AWOL and starts making a habit of it?  While some compassion will be in order, it is very important to follow the law.  Firing a domestic worker for continuous absence without following due process will be catastrophic.  Consider the following:

  • The employee is entitled to annual leave, sick leave, maternity leave as well as family responsibility leave. This is the employee’s legal right. However, the employer also has a right – the implied right to plan and to be informed if their staff will not be available.  Employees who go AWOL without notification makes it very difficult for employers to plan and to find substitutes on short notice.  It is thus fair for the employer to expect the employee to inform him or her timeously of unplanned absence, if circumstance allow for it.  Even a ‘please call me’ will do.
  • Employers should ensure that the written employment agreement with their domestic workers address the issue of notification of absence. While this will be difficult to enforce (rural areas may not have cell reception), at least ensure that the employee understands the importance of notification.
  • Introduce an attendance register – this is the only proof you will have should any attendance related case go to the CCMA.

SUGGESTED PROCESS TO FOLLOW

Remember, clinical as this sounds, absence without notification is still AWOL.  As employer you have the right to expect prior notification before any form of leave is taken.  In short, any leave should be approved beforehand.  Obviously, should the employee or her child suddenly fall ill, prior notification or approval may not be possible.  The employee should, however, try her utmost best to contact you and explain the reason for absence.

If your employment contract with your domestic worker is in place and you are well informed regarding the current domestic worker laws, the following process is suggested in cases of continuous or prolonged absence from work:

  • Have a proactive discussion with your employee. Remind him or her that unplanned absence should be notified, wherever possible. Explain their rights regarding absence, but at the same time explain your needs as an employer. Explain the effect of unpaid leave on his or her income, and explain that AWOL is an offence.  If possible, provide the means to contact you, perhaps some sponsored airtime will be appropriate.  Record the telephone numbers of some of the employee’s relatives and friends.
  • In cases of prolonged absence without notification, try to contact the employee. She may be very ill, deceased (hopefully not), or even in jail (these things happen).  Call her phone (if she has one), send a text, send a telegram to her known address, contact one of her relatives or friends.
  • If the employee does return to work after some time, and states that she attended a funeral, or her child was ill, you may ask for proof.  You should also council the employee on her continuous absence. In severe cases, even a disciplinary enquiry may be appropriate.  In fact, even though a disciplinary enquiry is not a pleasant experience, discipline your domestic worker when things are not correct. Do not overlook small transgressions, because they will build up to a point where it will no longer be acceptable to you, and if you then end up at the CCMA or the Dept of Labour contacts you, you will have no proof that a fair procedure was followed. Follow the required disciplinary steps as required and record the proceedings in detail.
  • In a case of prolonged absence, where you have reason to believe that she may not return at all, record all communication that you have initiated. The communication must be clear and there must be an instruction to return to work on a specific date. If the employee claims illness, ask for a doctor’s certificate.  In the case of a funeral, ask for a copy of the death certificate. Explain the consequences if she does not heed the instruction to return to work or to provide the required proof. Use as many mediums of communication as you can.
  • If the employee fails to provide any proof – then the absence may be treated as unpaid. If she fails to respond and return at all, despite your many efforts to communicate, you have the right to dismiss her in her absence. However, tread carefully here – you must be able to prove that you have followed every avenue to get hold of her and to allow her to state her case.  Dismissal is reserved for serious cases and should you end up in the CCMA, the onus will be on you to prove the dismissal was justified.  A fair process must be followed.

SUMMARY

In summary, absence without leave is an offence.  According to the employment contract the employer has the right to the services of the employee.  Absence without leave is thus unacceptable.  However, reality dictates that employers of domestic workers should be tolerant of their circumstances, yet still be strict in following legal requirements.

Summary dismissal for absenteeism is not a good idea – follow the guidelines above and ensure you can prove that you have tried your utmost to contact the employee to find out what is going on, and that you have made it clear via communication what she must do (provide proof, return to work, etc).  Counselling and discipline where corrective action is the preferred outcome, is always first prize.  Dismissal should only be used when all other avenues are exhausted.

Take the time to read this article – 7 IMPORTANT THINGS TO DO WHEN EMPLOYING A DOMESTIC WORKER.

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