Question: Are tea intervals paid or unpaid?
AWOL: SET OFF AGAINST ANNUAL LEAVE?
Question: If an employee is absent without leave or good reason, may an employer reduce the employee’s annual leave entitlement?
Annual leave and maternity leave
Question: Does annual leave accrue during maternity leave?
The difference between misconduct and incapacity
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?
How important is an internal appeal procedure?
Question: Is it advisable for an employer to have an internal appeal procedure?
Contract of Employment: Changes to Working hours
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”?
FAR-REACHING DEVELOPMENTS SURROUNDING EMOLUMENT ATTACHMENT ORDERS
Do employers still have to deduct emolument orders from employee salaries?
PART-TIME EMPLOYMENT CLARIFIED
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.
PHYSICAL SEARCHES, ALCOHOL, DRUG AND POLYGRAPH TESTING-MAY AN EMPLOYER INSIST?
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.
INSOLENCE AND INSUBORDINATION – WHAT IS THE DIFFERENCE?
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.
THE IMPORTANCE OF SKILLS DEVELOPMENT AND THE NEW BBBEE CODES
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?
EMPLOYER RIGHTS PERTAINING TO PREGNANCY AND MATERNITY LEAVE
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?
FIXED TERM CONTRACTS: Changes effective 1 Jan 2015
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.
TERMINATING AN EMPLOYEE’S SERVICES BY AGREEMENT
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.
POWER OUTAGES – MUST EMPLOYEES BE PAID?
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.
CONTRACTING OUT OF THE LABOUR RELATIONS ACT
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?
CHANGING A DISCIPLINARY SANCTION
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?
MEDICAL CERTIFICATES BY TRADITIONAL HEALERS
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.
THE RELEVANCE OF LAPSED DISCIPLINARY WARNINGS
Can lapsed warnings be taken into account when an employee faces disciplinary action?
EMPLOYMENT EQUITY ACT AMENDMENTS EFFECTIVE FROM 1 AUGUST 2014
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.
NEW EARNINGS THRESHOLD AS FROM 1 JULY 2014
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.
EFFECT OF SICK LEAVE ON OVERTIME PAY
How does an employee’s absence due to illness affect overtime pay?
ZERO TOLERANCE FOR ALCOHOL AND DRUGS IN THE WORKPLACE
Dealing with alcohol and drug abuse in the workplace is not easy. At the one extreme you might have a driver who drinks heavily on a particular occasion while on duty, and then drives and crashes a company vehicle while under the influence of alcohol. At the other extreme, you might have a clerk who occasionally smells of alcohol at the workplace, but approaches the employer of his own free will for assistance with alcohol dependency. While these situations clearly require different approaches, there could be a number of situations in between that each requires a slightly different approach.
EARLY TERMINATION OF FIXED TERM CONTRACT BY BALEKA MBETE
When employers want to terminate a fixed-term contract before the expiry date, it would seem to make sense that this could be done as long as they pay the employee for the balance of the term. However, a recent Labour Court case involving the Office of the Presidency has highlighted the fact that premature termination of employment may amount to an unfair dismissal.
TAKING ADVANTAGE OF THE “YOUTH WAGE SUBSIDY”
With effect from 1 January 2014 employers can take advantage of the Employment Tax Incentive (often referred to as the “youth wage subsidy”). It appears to be a very simple process, essentially administered by SARS.
SKILLS DEVELOPMENT AND THE NEED TO PLAN FOR THE 2014/2015 SUBMISSIONS
The date by which employers have to submit their Workplace Skills Plan (WSP) and the Annual Training Report (ATR) to their SETA’s is fast approaching. It has been brought forward to 30 April 2014 (having previously been 30 June of each year).
FORFEITURE OF ANNUAL LEAVE
Question: Can annual leave be forfeited?
TAKING ADVANTAGE OF THE “YOUTH WAGE SUBSIDY”
With effect from 1 January 2014 employers can take advantage of the Employment Tax Incentive (ETI), often referred to as the “youth wage subsidy”. It appears to be a very simple process, essentially administered by SARS.
LABOURWISE 10km Road Race & 5km Fun Run/Walk
Labourwise & Labourwise HR presents The inaugural LABOURWISE & Strand Athletic Club 10km Road Race & 5Km Fun Run/Walk held in honour of Whiskey Jooste – All proceeds to go …
“PIEMPING” ON A FELLOW EMPLOYEE
What if a fellow employee does something that causes the employer harm – is there an obligation on his/her collegues to report this to the employer?
DISCIPLINING EMPLOYEES WHO ARE ON SICK LEAVE
Just before she has to attend a disciplinary hearing, your employee submits a medical certificate stating that she is unable to attend the hearing because of some undisclosed illness. What should you do?
DISPUTES ABOUT BENEFITS PART 2: DISPUTES OF RIGHT AND DISPUTES OF INTEREST
In the previous article we discussed recent developments is case law relating to disputes about ‘benefits’. We pointed out that such disputes that would previously have been referred to the Labour Court because it related to remuneration, may now be referred to the CCMA on the basis that the employer has exercised its discretion unfairly. But there is another potential obstacle that needs to be considered – this is the argument that the CCMA does not have the jurisdiction to arbitrate on so-called ‘disputes of interest’.
DISPUTES ABOUT BENEFITS PART 1: THE DISTINCTION BETWEEN REMUNERATION AND BENEFITS
Employers have been avoiding liability for unfair labour practice claims relating to “benefits” for some time. It has been argued, often successfully, that the CCMA lacks jurisdiction where a dispute about benefits relates to remuneration. This and other barriers have since been eroded significantly.
DOCTORS ISSUING SICK CERTIFICATES ON DEMAND
Employees are not necessarily the only ones to blame for the abuse of sick leave in South African workplaces. It is a known fact that some doctors earn an easy fee by issuing medical certificates without examining the employee. Most employers assume that they simply have to accept medical certificates at face value.
WORKING AFTER RETIREMENT – BUT HOW DOES ONE TERMINATE EMPLOYMENT?
It sometimes makes sense for companies to allow certain employees to continue working after the agreed or normal retirement age. The question is this: How does one go about terminating employment during that period?
MAY AN EMPLOYEE WITHDRAW A RESIGNATION?
May an employee withdraw a notice of termination and must the employer accept the withdrawal? And is there a distinction between desertion and resignation without proper notice?
THE IMPORTANCE OF PERFORMANCE APPRAISALS
A study showed that 80% of employees were dissatisfied with the performance appraisal system. Many managers also find it an extremely stressful process, so why not just do away with performance appraisals?
THE RIGHT TO AN ANNUAL BONUS
Question: Does an employee have a right to an annual bonus?
CLAIMING FOR SKILLS DEVELOPMENT CLARIFIED
It is a misconception that companies can only be reimbursed for training provided by external SETA-registered institutions. Companies can in fact also be reimbursed for structured internal, day to day training as well as Learnerships offered.
IMPACT OF AMENDMENTS TO THE EMPLOYMENT EQUITY ACT
The Bill seeks to rectify anomalies and clarify uncertainties that have arisen out from the interpretation of the EEA in the past decade. We will also see the expansion of the powers of the Labour Inspectorate and the jurisdiction of the CCMA.
INCORRECT IMPRESSION CREATED BY MEDIA ON SANGOMA SICK CERTIFICATES
Recent newspaper reports imply that the Labour Appeal Court has now decided that employers have to accept ‘sick’ certificates from sangomas. This is not the case.
SIGNIFICANT CHANGES COMING TO BBBEE LEGISLATION
The DTI recently published a number of proposed amendments to the Broad Based Black Economic Empowerment Act for comment, which if implemented will have a significant impact on organisations, making it more onerous to retain or improve their ratings.
PROPORTIONATE SICK LEAVE
Question: Is an employee on a fixed term contract only entitled to proportionate sick leave?
ACCOMMODATING RELIGIOUS BELIEFS
In a society with diverse religious beliefs employers are challenged not only to be tolerant, but also to accommodate that diversity in the workplace. To what extent must religious beliefs and practices of employees be accommodated?
EMPLOYEES WHO REFUSE TO SIGN A CONTRACT
Generally an employee may not be dismissed for refusing to sign a contract of employment. But are there circumstances where the employer can take stronger action short of dismissal?
BRIEF ILLNESS – INSISTING ON A MEDICAL CERTIFICATE
Question: If an employee is absent due to illness for a brief period (no more than 2 days), may the employer insist on a medical certificate?
HIGHLIGHTS OF THE LRA AMENDMENT BILL
Finally we have clarity about the nature of the forthcoming amendments to the LRA and BCEA.
MAY EMPLOYER POLICIES BE CHANGED UNILATERALLY?
Question: May an employer change a policy without the agreement of employees?
HOW SERIOUS IS THE TRADE UNION THREAT?
When a trade union approaches an employer with the news that its employees have joined the union, one can understand that some employers might experience a sense of betrayal. But is it as bad as it seems?
WELCOME TO LABOURWISE – The Employer’s Choice
Labourwise is an advisory service for employers in South Africa. Although many of our articles and other useful information are for free, we offer a professional subscription service for the business …
PAYING EMPLOYEES A “FLAT RATE”
May an employer pay its employees a flat rate (e.g. including pay for overtime worked, work on Sundays and public holidays, sick leave, family responsibility leave)?
RETIREMENT AGE – THE EMPLOYER’S CHALLENGE
Our law does not provide for a national or general age at which employees have to, or may retire. Contracts of employment may of course contain an agreed retirement age, …
TERMINATION OF A CONTRACT OF TEMPORARY EMPLOYMENT
Must an employer give notice of termination of the services of an employee who has been employed on a temporary basis?
QUO VADIS FIXED TERM CONTRACTS?
Just as we think that the law pertaining to fixed term contracts has settled, something changes. While the latest development regarding the expectation of renewal of a fixed term contract may be welcomed by employers, there is no reason to celebrate.
THE RIGHT TO ANNUAL INCREASES
Does an employee have a right to an annual increase?
ACCOMODATING CULTURAL BELIEFS AND INDIGENOUS CUSTOMS
Should an employer try to accommodate an employee’s request for leave of absence to be trained as a traditional healer, where the period of absence may be as long as one month or longer? Or to grant leave in excess of the family responsibility leave available to an employee so that she can fulfil her obligation to arrange for a family member’s funeral?
THE OBLIGATION TO WORK OVERTIME
Question: May employees be forced to work overtime? What if they refuse?
TRASHING YOUR BOSS ON FACEBOOK
Social networks, such as Facebook, serve as a useful vehicle for sharing one’s personal views. It can also have unexpected and unfortunate ramifications. One example is when an employee makes use of a social network to air his views about his or her employer.
GLOSSARY
OFTEN USED WORDS AND PHRASES
The following is a glossary of words and phrases that subscribers might encounter:
CHANGING HOURS OF WORK
May an employer increase or decrease agreed working hours of its employees?
OVERTIME PAY FOR MANAGERS
May a manager be required to work overtime, on Sundays and public holidays without receiving additional pay?
AFFIRMATIVE ACTION: WHERE THE LAW STANDS AT PRESENT
The recently proposed amendments to the Employment Equity Act (‘EEA’) created much discussion and concern. The concern arose from both the substance of some of the proposals and the poor manner in which they were drafted. For now it would appear that the proposed changes (as well as proposed changes to the LRA and the BCEA) will not be passed in law in their current form. We are likely to see, at some point in the not too distant future, better considered and drafted proposals for change.
PROSPECTIVE EMPLOYEE’S DUTY TO DISCLOSE INFORMATION
There is a fair chance that a job seeker has left the employment of the former employer on bad terms. Whatever the circumstances, the applicant is faced with the difficulty that volunteering such information could harm the prospects of getting a new job. The job seeker may get away by being scant on detail in the CV. Being evasive during the job interview is likely to be more problematic. But how far does the duty to disclose go?
NO EASY WAY OUT FOR LABOUR BROKERS
Employers engage temporary employment services (‘TES’ or ‘labour brokers’) for various reasons, one being the relative ease with which under-performing or misbehaving placements can be replaced. Unless there is a …
AMENDMENTS TO LABOUR LEGISLATION: WHAT SHOULD EMPLOYERS BE DOING RIGHT NOW?
While the proposed amendments to labour legislation have attracted significant media attention, many refinements can still be introduced before the amendments reach the statute book. Even so, employers should be …
WHOLESALE / RETAIL
Downloadable Forms Click here to access these documents in the Forms section
Sectoral Determination 9 – Wholesale and Retail Sector
Wholesale & Retail – Minimum wages 2020-2021
Wholesale & Retail – Contract of employment: Permanent
Wholesale & Retail – Contract of employment: Fixed
Wholesale & Retail – Explanatory notes
Annexure A: Proof of employment
Annexure B: Attendance register
Annexure C: Payslip
KEEPING UP WITH EMPLOYMENT EQUITY
Complying with the Employment Equity Act (EEA) is not merely a mechanical process. There are indeed some procedural requirements, but in assessing compliance consideration must be given to whether ‘sufficient progress’ has been made with the …
DISMISSING IMPRISONED EMPLOYEES
When an employee is imprisoned for having committed a crime, there could be more than one reason why the employer might want to terminate employment. The employer might feel that …
SICK LEAVE DURING ANNUAL LEAVE
Question: If an employee falls ill during annual leave, must the employee get paid sick leave? Or must the employee’s annual leave entitlement be extended?
ELECTRONIC COMMUNICATIONS AND EMPLOYEE PRIVACY
When employees send e-mails, they don’t always anticipate where an e-mail might eventually end up. What about their right to privacy?
UNFAIR DISMISSAL – DISMISSAL FOR MISCONDUCT
1A1 Notice of Disciplinary Enquiry
1B1 Detailed Guidelines: Preparing for Disciplinary Enquiry
Code of Good Practice.Dismissal (Schedule 8 2009 07 update)
Form 1.1 Disciplinary Code & Procedure
Form 1.2 Informal disciplinary interview.No dismissal envisaged
Form 1.3 Record of warning. All in one
Form 1.4 Notice of disciplinary hearing
Form 1.4b Notice of disciplinary hearing&suspension
Form 1.4c Suspension only
Form 1.5 Formal disciplinary hearing guidelines.Possible dismissal
Form 1.6 Dismissal.notice
Form 1.7 Administration after dismissal
Form 1.8 Certificate of service
UNFAIR DISMISSAL – MEDICAL INCAPACITY
Code of Good Practice.Dismissal (Schedule 8 2009 07 update)
Form 3.1 Checklist
Form 3.2 Consent to disclose medical condition
Form 3.3 Notice of investigation
Form 3.4 Notice of dismissal
UNFAIR DISMISSAL – DESERTION & RESIGNATION
Form 5.1 Desertion letter
UNFAIR DISMISSAL – POOR WORK PERFORMANCE
Code of Good Practice.Dismissal (Schedule 8 2009 07 update)
Form 2.1 Poor performance counselling
Form 2.2 Poor performance Notice of Investigation
Form 2.3 Poor performance Investigation guidelines
Form 2.4 Poor performance Notice of dismissal
UNFAIR DISMISSAL – RETRENCHMENT
Code of Good Practice. Dismissal for operational requirements.1999.07
Form 4.1 Retrenchment checklist
Form 4.2 Invitation to consult
Form 4.3 Letter to employees
Form 4.3 Retrenchment Agreement
Form 4.4 Final decision confirmation
Form 4.5 Final consultation (individual employee)
Form 4.6 Notice of termination
Form 4.7 Reference letter
LABOUR LAWS
Labour Relations Act of 1995 (as amended)
Basic Conditions of Employment Act No. 75 of 1997 (as amended)
National Minimum Wage Act of 2018
Employment Equity Act of 1998 (as amended)
Broad-Based Black Economic Empowerment Act No. 53 of 2003
Skills Development Act No. 97 of 1998 (as amended)
Skills Development Levies Act No. 9 of 1999
Public Holidays Act No. 36 of 1994
The Constitution of the Republic of South Africa
Compensation for Occupational Injuries and Diseases Act 130 of 1994 (as amended)
Occupational Health & Safety Act No. 85 of 1993 (as amended)
DISPUTES – GRIEVANCE AND DISPUTE RESOLUTION
Form 10.1 Grievance Procedure
Form 10.2 Grievance Notification
Form 10.3 Guidelines for Grievance Hearing
DISPUTES – CONCILIATION
Form 11.1 Dispute resolution bodies
Form 11.2 Disputes and their processes
Form 11.3 Guidelines for conciliation
DOMESTIC WORKERS
Domestic Workers_Permanent_Fixed term
Domestic Workers_Accommodation schedule
Domestic Workers_Explanatory notes
FARM WORKERS
Farmworkers_Permanent_Fixed Term
Farmworkers_Accommodation schedule
Farmworkers_Explanatory notes
WHOLESALE & RETAIL SECTOR
Wholesale_Permanent_Indefinite
Wholesale_Temporary/Fixed term
Wholesale_Explanatory notes to contract
HOSPITALITY SECTOR
Hospitality_Permanent_Indefinite
Hospitality_Fixed
BASIC CONDITIONS OF EMPLOYMENT ACT
Basic Conditions of Employment Act_Permanent
Basic Conditions of Employment Act_Temporary/Fixed Term
Basic Conditions of Employment Act_Occasional (General)
Basic Conditions of Employment Act_Occasional (Project Sheet)
DISPUTES – ARBITRATION AT THE CCMA
Form 12.1 Guidelines for arbitration process
Form 12.2 Flowchart for dispute resolution
HOSPITALITY TRADE
Downloadable Forms Click here to access these documents in the Forms section
Sectoral Determination 14: Hospitality Sector
Hospitality Wages 2020 – 2021
Hospitality Trade – Contract of employment: Permanent
Hospitality Trade – Contract of employment: Fixed
BASIC CONDITIONS OF EMPLOYMENT ACT – PURPOSE AND APPLICATION
BCEA 2: Wages register
BCEA 3: Attendance register
BCEA 4: Payslip
BCEA 5: Certificate of service
DOMESTIC WORKERS
Downloadable Forms Click here to access these documents in the Forms section
Sectoral Determination 7: Domestic Worker Sector
Domestic worker – Minimum Wages 2020-2021
Domestic worker – Contract of employment
Domestic worker – Explanatory Notes
Domestic worker – Time and Wage record
Domestic worker – Certificate of service
Domestic worker – Sectoral Determination Summary
Huiswerker – Dienskontrak
Huiswerker – Tyd en loon rekord
Huiswerker – Dienssertifikaat
UNIONS AND STRIKES – UNION RIGHTS
Form 6.1 Authorisation to deduct
Form 6.2 Notice of revocation
Form 6.3 Draft Recognition agreement
UNIONS AND STRIKES – NEGOTIATING WITH UNIONS
Negotiating with unions
UNIONS AND STRIKES – PROTECTED STRIKES
Code of Good Practice.Picketing.1998.05
Form 8.1 Preparing for a strike
Form 8.2 Checklist during the strike
Form 8.3 Checklist after the strike
Form 8.3 Checklist after the strike2
Form 8.4 Draft picketing agreement
Form 8.5 Strike flow chart
UNIONS AND STRIKES – UNPROTECTED STRIKES
Form 9.1 Notice in anticipation of strike
Form 9.2 Notice after commencement of Unlawful Strike
Form 9.3 Further notice during Unlawful Strike
Form 9.4 Unlawful Strike: Ultimatum
Form 9.5 Unlawful Strike: Notice of Dismissal
Form 9.6 Unlawful Strike: Notice of Disciplinary Action
FARM WORKERS
Downloadable Forms Click here to access these documents in the Forms section
Sectoral Determination 8: Farm workers
Farm workers – Minimum wages 2020-2021
Farm workers – Contract of employment
Farm workers – Explanatory notes
Farm workers – Accommodation addendum
EMPLOYMENT EQUITY – AFFIRMATIVE ACTION
Code of Good Practice.Preparation, implementation & monitoring of EE plans.1999.11
Employment Equity Regulations 2009.07.14
Form 14.1 Turnover threshold
Form 14.2 Fines for EE transgressions
NOT ALLOWED TO DISMISS A THIEF?
In Shoprite Checkers (Pty) Ltd v CCMA & Others the LAC held essentially that theft should be treated like all other forms of misconduct and that mitigating factors must also be taken into account.
PURPOSE AND APPLICATION
Contents
1. WHAT IS THE PURPOSE OF THE ACT?
2. TO WHOM DOES THE ACT APPLY?
2.1. Generally
2.2. Casual Employees
2.3. Temporary Employees
2.4. Temporary employment services (Labour Brokers)
2.5. Independant contractors?
3. CONTRACTING OUT OF THE BCEA
Downloadable Forms Click here to access these documents in the Forms section
BCEA 2: Wages register
BCEA 3: Attendance register
BCEA 4: Payslip
BCEA 5: Certificate of service
WORKING HOURS
Contents
1. ORDINARY HOURS OF WORK
1.1 Daily hours
1.2 Weekly hours
1.3 Emergency work
2. OVERTIME
3. COMPRESSED WORKING WEEK
4. AVERAGING OF HOURS
5. MEAL INTERVALS
6. REST PERIODS
7. SUNDAYS AND PUBLIC HOLIDAYS
8. NIGHT WORK
EMPLOYMENT EQUITY – DISCRIMINATION
Code of Good Practice.Employment of People with Disabilities.2002.08.1919
Code of Good practice.Handling Sexual Harassment.2005.06.22
Code of Good Practice.Integration of EE into HR Policies & Practices.2005.08.04
Form 13.1