In April we were shocked to hear that following an assault baby Kruger and the Nanny were hospitalized.
It appears that the Nanny allowed workers who had previously been employed at the Kruger property into the house without permission?
After her discharge from hospital the Nanny was allegedly unfairly dismissed and referred the matter to the CCMA.
The alleged dismissal has sparked fierce debate with most of the pundits believing the dismissal to be fair.
Where a dismissal is referred to the CCMA, the onus is on the Employer is to establish that the dismissal was for a fair reason and in accordance with a fair procedure. Failure on either ground may result in an award in favor of the employee of up to 12 months wages couple with possible reinstatement and back pay.
If the Nanny was negligent/reckless in allowing in the intruders there is no doubt that there is a fair reason for termination.
If on the other hand, the employer consented or condoned the Nanny having visitors there is probably not a fair reason to dismiss.
The matter does not end there as a fair procedure must be followed prior to dismissal. Provided the Nanny was given a fair opportunity to respond to the allegations of misconduct the requirement of procedural fairness will be satisfied.
What then if the Krugers are unable to establish that the Nannie’s dismissal was procedurally and substantively fair, ought she to be awarded compensation and possibly be reinstated?
Not so, Section 193 of the Labour Relations Act requires the Arbitrator/Judge to exercise his/her discretion in making an award. Thus even if the Krugers fail to establish the the dismissal was fair, the Nanny may still leave empty handed and rightly so.
Ian Mc Laren
