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Thread: CCMA - Unfair dismissal vs being AWOL - why am I being asked to pay ex-employee?

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    Question CCMA - Unfair dismissal vs being AWOL - why am I being asked to pay ex-employee?


    I have a domestic worker that has laid a complaint at the CCMA for unfair dismissal today 28/08/2015. I am waiting for a case number as we speak.

    According to her statement with the CCMA, we fired her on the 15/08/2015 when in fact we terminated employment mid-April of this year! Our basis for termination was that she was unreliable as she did not let us know when she was not coming to work on frequent occasions (she had 2 set days a week) and this caused our trust to break down considerably and was also a breach of contract regarding her work days.

    I have sms's available that prove that I queried where she was on the days that she didn't show up for work and that I received no response. With my discussion with the CCMA today, her statement is that she told us that her son was in hospital (hence unfair dismissal?) when in fact it was over Easter when she went to Moria and didn't return on the specified working day as scheduled.

    Additionally, no medical certificates were provided to account for her absence and the only reason I knew where she was at that particular time was because she asked to leave early on the previous Thursday to go to the church event in Middelburg(?). When she failed to return, I sms'd her to state the intend of dismissal, collect her wages that were due and that we would talk when she arrived. My husband and I explained to her and her husband (who came with to ask us to let her keep her job) that this was not the what we expected from our working relationship and as we had given multiple warnings before, we would now terminate employment. We then paid her for the days that she worked and that was that.

    While I understand that a notice period needs to be given and/or wages paid, special consideration was given to firing her for not arriving for work on multiple occasions with no show of intent to return to work. She was quick to pick up her wages but no communication regarding her absence at all..

    The agreement was 2 days a week at R120 per day (cash as she has no account), no written contract due to limited communication barriers (I understand that even a verbal contract is subject to the law). She would come in at 8 and leave at 3 with an hour for lunch.

    With unfair dismissal, you have 30 days to apply for a CCMA case. What bugs me is the fact that it is 5 months later. Please advise on recourse as even if she does apply for condonation, I feel that she has not been honest with her application to the CCMA. She wants R520 to settle ( I am stubborn and do not think I should be paying for this). The circumstances bugs me as I get the idea that she may not have found further employment in the interim (or has been fired again)and I may just be an easy target to get money from.

    Has anyone been through this and could you offer any advise?

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    Object to the arbitration commencing after conciliation.
    At conciliation, raise the time limit issue.
    She will have to start again. Use this as leverage to settle for R50
    Anthony Sterne
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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