Much confusion has arisen with the introduction of the Covid-19 temporary employee / employer relief scheme (C19 TERS)
Disciplinary hearings via Skype? Consulting via Zoom? Are such processes allowed? Electronic platforms have become more accessible. The Covid-19 pandemic has alerted us to opportunities that were not obvious before. Does this mean that we may embrace these platforms in labour and employment law processes?
With a large proportion of the population likely to become infected with Covid-19 before a vaccine is available, businesses are in for a rough ride in the coming months. Some employees will have tested positive, others might simply present with symptoms. Are they entitled to paid sick leave, UIF illness benefits or Compensation Fund benefits?
Retrenchment may be the first thought that comes to mind for employers who are hard hit by Covid-19. However, in most cases rushing into the retrenchment process is not a good idea.
Aside from the adverse economic, health and social impact of the Corona crisis on people generally, employers are also confronted by complex legal issues and facing several employment challenges after lockdown.
According to an “Easy – Aid Guide for Employers”, the UIF has added a R3500 per month flat rate benefit to the existing relief measures, which it refers to as a “National Disaster Benefit”.
In a drastic measure to curb the spread of COVID-19, the SA Government has declared a lock-down as from midnight on Thursday 26 March 2020 until midnight on Thursday 16 April 2020. This will be enacted in terms of the Disaster Management Act. During this period all employees, with the exception of a few categories, will have to stay at home. Who pays their salaries? What happens after the 21-day lock-down?
Here are the announced measures by Minister of Employment and Labour to facilitate a variety of UIF claims relating to the Coronavirus.
Some businesses are under severe strain as a consequence of the severe measures implemented due to the COVID-19 having been declared a national disaster. They are resorting to emergency measures such as short time & temporary lay-off. A fairly recent amendment to the Unemployment Insurance Act of 2001 is likely to bring much needed relief to affected employees.
Now that the World Health Organisation has declared the Coronavirus (COVID-19) outbreak a pandemic and the President has declared it a national disaster, employers are under increased pressure to take action: What precautionary measures should be taken, what forms of leave apply, how must employees be accommodated, quarantine, how does one deal with a slowdown in business, etc?
The basis of every employment relationship is a contract of employment. As the parties are bound by the contract, careful thought should be given to the specific terms and conditions. But how much information should be included and how flexible can it be?
The national minimum wage (NMW), as well as minimum wages in some other sectors, will increase with effect from 1 March 2020.
Employees are legally entitled to parental leave, adoption leave and commissioning parental leave as from 1 January 2020. This follows a proclamation issued by the President (on 23 December 2019) in terms of section 17 of the Labour Laws Amendment Act of 2018.
Is an employee whose fixed-term contract comes to an end entitled to severance pay?
The minimum wages for the Wholesale & Retail that were published in the Government Gazette on 2 August 2019 were incorrect. These have now been corrected in a ‘Correction Notice’ dated 14 October 2019. The corrections have retrospective effect from 2 August 2019.
All too often employers are expected to be technically correct when drafting disciplinary charges. But is this fair to the employer? What if the employee has not been prejudiced?
It is the breakdown of the relationship of trust that normally justifies termination of employment in cases of employee misconduct. How serious must that breakdown be? Does the employer have to prove such breakdown of trust to justify dismissal?
When employers restructure in order to improve efficiencies, it leads to redundancies. Redundancies can lead to retrenchment, but not necessarily. This is where employers often get it wrong.
Occasionally a customer or other external party is witness to employee misconduct. It may be necessary for such person to give evidence in disciplinary proceedings. If the employee challenges the outcome of the hearing, such evidence may also be needed in arbitration proceedings. But what if the person does not want to get involved? Is hearsay evidence allowed?
This year 16 June (Youth Day) falls on a Sunday. This means that Monday, 17 June, is also a public holiday. The question has again arisen what employees should be paid.
When it comes to retrenchment, employers tend to make the mistake of announcing their decision to retrench before consulting with the affected employees or their union. Confronting employees with a fait accompli can be fatal to the process. But does this mean that an employer may not form any opinion before consulting?
In a disciplinary hearing an employee has the right to be heard before being judged. But does an employee have the right to be heard before being suspended pending the outcome of the hearing? Against the background of conflicting case law, the Constitutional Court has finally brought about some clarity on pre-suspension hearings.
Employers are reminded that the upcoming Election Day on Wednesday, 8 May 2019, has been declared a public holiday throughout the Republic of South Africa and that it should be treated the same as any other public holiday.
Employers were expecting the minimum wage rates in the Wholesale and Retail Sector to be increased with effect from 1 March 2019 – this did not happen.
Adherents to certain religions are reluctant to work on their sabbath or other holy days. But what if such a refusal clashes with the employer’s operational needs?
The minimum wages in the Domestic Worker Sector will increase with effect from 3 December 2018.
The national minimum wage (NMW) has been signed into law. Effective 1 January 2019. What exactly does this mean to employers and employees?
A recent Labour Court judgement highlighted the importance of respecting an employee’s home language and right to an interpreter in a disciplinary hearing. But what if the disciplinary hearing is conducted in English and the employee is proficient in English?
People may no longer be prosecuted for cultivating, possessing and using small amounts of dagga for private purposes. But what are the consequences for the workplace?
Can employees escape the consequences of their actions by resigning with immediate effect? There has been uncertainty about an employer’s right to proceed with disciplinary action after an employee’s resignation ‘with immediate effect’ but a judgement of the Labour Court in Cape Town has brought about much needed clarity.
When the CCMA makes an award for the reinstatement of an employee who has been unfairly dismissed or suspended, it seldom goes down well. But what happens if the employer ignores the award?
Employers must exercise their disciplinary powers in a consistent manner. The primary reason for requiring employers to act consistently when instituting disciplinary action or meting out disciplinary sanctions, is to ensure that they do not act arbitrarily. In other words, like cases must be treated alike.
South Africans were expecting that a national minimum wage (NMW) would be implemented on 1 May 2018. This did not happen, but the NMW is still likely to be implemented during the course of this year. We can also expect some other changes to labour legislation. How will this affect employers and employees?
The minimum wage rates in the hospitality sector have been increased with effect from 1 July 2018. The minimum rates are still below the National Minimum Wage (NMW) which is expected to be implemented during the course of 2018. How will employers be affected?
Question: Is a statement of intent by an employee to resign enough to terminate employment?
An employee could claim additional compensation if a suspension is regarded as being unfair. In a well-publicised case, the CCMA awarded an employee five months’ remuneration in addition to the normal pay that the employee received while on suspension.
May an employer deviate from disciplinary procedures in misconduct cases?
The potential impact of the drought on the employment relationship should not be underestimated. It may affect the employee’s right to remuneration if it becomes impossible for employees to work, but it may also lead to problems with employee attendance if employees have to queue for water.
An employee resigns with immediate effect after receiving notice of a disciplinary hearing. May the employer proceed with disciplinary action?
The minimum wages in the Domestic Worker Sector will increase with effect from 1 January 2018.
Some businesses need water in order to function. The prevailing drought in the Western Cape has led to unpredictable interruptions due to the implementation of water rationing measures. Interruptions to water supply can also be due to a variety of other reasons. Contingency plans may be inadequate, which may result in employees not being able to work
Does setting sales targets make it easier to dismiss an employee for poor work performance?
Are Uber drivers independent contractors or employees?
Cosatu gave notice to Nedlac of their intention to embark on protest action on Wednesday, 27 September 2017. The main thrust of this action relates to so-called state capture.
Special care must be taken before dismissing an employee due to disability. What guidelines should one follow if there’s doubt?
May an employer make deductions for damage or loss caused by employee?
The Labour Relations Act protects employees against unfair dismissal. However, our law makes allowance for a contract of employment coming to an end without it amounting to a dismissal.
Question: May face to face conversations be recorded without consent?
As from 1 July 2017, the new minimum wage rates for the hospitality industry sector are increased.
The distinction between incapacity due to ill health (‘medical incapacity’) and disability is from both a practical and legal perspective one of the most difficult situations for an employer to manage.
In certain exceptional circumstances it is acceptable for an employer to rely on written statements only in a disciplinary hearing.
Question: May a chairperson in a disciplinary hearing rely only on written statements?
How should employers respond to the call for nationwide protest action on 7 April?
There could be several reasons for employers ending up having ‘illegal’ foreigners in their employ. The illegal employment of a foreigner is expressly prohibited by the Immigration Act. What does an employer do if a work permit is due to expire, or has already expired?
Considering that the previous increase came into effect on 1 March 2016, one may be forgiven for assuming that the implementation date of the new minimum wage rates in the Wholesale and Retail Sector would be 1 March 2017. But the effective date of the increase this year is 1 February 2017.
Arbitrators will look at the following factors when deciding whether or not a dismissal for ill health was fair.
The minimum wages in the Domestic Worker Sector will increase with effect from 1 December 2016.
Much has been said of “the right to remain silent”. It may be raised by a defendant in criminal law, but does it mean anything in the employment relationship?
Question: Is a contractual notice period of use to the parties in an employment relationship?
The issue of ‘plea bargaining’ arises where there are several perpetrators involved in a disciplinary transgression. The employer needs one or more co-perpetrators to give evidence at the disciplinary hearing. Can one agree to a lesser sanction in return for his testimony against the alleged accomplices?
This coming festive season we will have three public holidays in succession. First there is Christmas Day which falls on a Sunday. This is followed by the Day of Good Will on Monday, the 26th of December. In addition, we will now also be having a public holiday on 27 December 2016.
Wilful and persistent refusal to carry out an instruction often results in summary dismissal. It becomes trickier if the employee has a good reason not to follow the instruction. So, what is a good reason to refuse to work?
Question: Does annual leave accrue during maternity leave?
May employees on probation be dismissed for lesser forms of misconduct?
As from 1 July 2016, the minimum wage rates in the hospitality sector are increased
Earning extra money outside of working hours (also referred to as ‘moonlighting’) may sound like a good idea. But what if the employer objects?
Where employees don’t do what is expected of them, the employer is often faced with a practical dilemma: Do I treat this as misconduct or incapacity?
May an employer use a fixed term contract as a substitute for probation?
How high may the employer set the bar when it comes to discipline in the workplace– may a zero tolerance approach be implemented?
Question: Are employees entitled to be paid for tea and other breaks that occur in the working day?
The assumption is often made that people who do volunteer work are not employees. But are volunteers protected by labour legislation?
May an employee who goes for regular medical check-ups with the doctor claim it as paid sick leave?
1 March 2016 is the effective date for an increase in the minimum wage rates in the Wholesale and Retail Sector.
Social media has become a powerful communication tool, but using it can have far-reaching consequences. Can employees be dismissed for expressing their personal opinions outside the workplace and outside of working hours?
Drafting a proper disciplinary notice can be frustrating. Many employers would simply pass the responsibility to external advisors. Yet, provided a few fundamentals are taken care of, there is no reason why managers could not do it themselves and leave only the most complicated cases for external parties to assist with.
As a rule employers should give newly-appointed employees some time to settle in before deciding on their suitability for the job. But would it be fair to expect an employee appointed to a high level job to ‘hit the ground running’?
Must a fixed-term contract with an employee have an end date?
Time spent travelling between clients and the workplace during the working day would normally be regarded as working time. But what about time spent travelling to work, or time spent at the workplace before commencing with normal daily tasks?
Question: Are tea intervals paid or unpaid?
Question: If an employee is absent without leave or good reason, may an employer reduce the employee’s annual leave entitlement?
Question: Does annual leave accrue during maternity leave?
Question: An employee makes many mistakes, but it is not clear whether she is unwilling or unable to do the job. Do I treat it as misconduct or incapacity?
Question: Is it advisable for an employer to have an internal appeal procedure?
Question: Would the following clause in the employment contract be valid: “Your hours of work can be changed, provided you are given 12 hours notice of such change”?
Do employers still have to deduct emolument orders from employee salaries?
Until recently, our labour legislation has made no reference to part-time employment. What has gone almost unnoticed is the specific introduction of the protection of employees that are employed on a part-time basis in contrast to fixed term contracting that has received a lot of publicity recently.
There is nothing in our law that prevents an employer from adopting a workplace policy that requires employees to submit to tests or allow themselves and their belongings to be searched.
The workplace is not a democracy. One of the implied terms of the contract of employment is that of subordination – the employee has to submit to the authority of the employer provided this is exercised lawfully and reasonably.
How will an organisation’s upcoming skills development submission impact on its future BBBEE ratings and what steps can be taken to maximise their scores in this element?
Does a job applicant need to disclose her pregnancy status to an employer? May an employer take disciplinary action against an employee who, at the time of appointment, failed to disclose her pregnancy? Or lied about it? May an employee who is on maternity leave be dismissed for genuine reasons relating to performance, disciplinary action or redundancy?
One of the most important changes to the Labour Relations Act , which came into effect on 1 January 2015, is the added protection afforded to employees on fixed term contracts. While some employers and employees are not directly affected, the impact will be far reaching and employers are encouraged to review their current contracts and practices to ensure compliance.
Is it always necessary to go through onerous disciplinary or incapacity procedures before terminating an employee’s service? The short answer is no. Unfair dismissal protection only applies when an employee is dismissed.
The recent power outages have again raised the question as to whether employees can insist on payment of their salaries or wages for the duration of such outages.
Imagine a situation where an employer does not have job vacancy, but agrees to accommodate a person as a favour. The person is employed with the clear understanding that if things do not work out, the contract may be terminated without the employee having recourse to the remedies afforded by the Labour Relations Act. Can this be done?
Does it make any difference if the employer’s disciplinary procedure makes specific provision for management’s power to overrule a chairperson’s decision? Or if it states that the chairperson’s findings are just recommendations and not final decisions?
Do medical certificates issued by traditional healers have to be accepted by employers? While there does not appear to be an obligation to do so at present, indications are that it will be soon become a reality.
Can lapsed warnings be taken into account when an employee faces disciplinary action?
The Employment Equity Amendment Act of 2013 has finally come into effect on 1 August 2014. Not only large employers are effected and some provisions apply to all employers, irrespective of their size. The Department Labour is likely to be very active in assessing employers’ compliance in the months to come.
The earnings threshold will increase to R 205 433.30 per year with effect from 1 July 2014. This has favourable implications for employees that previously earned in excess of the threshold, but will fall under the threshold as from 1 July 2014.
How does an employee’s absence due to illness affect overtime pay?