Legal Questions

Question:

What are unfair labour practices and automatic unfair dismissal?  

Answer:

Unfair labour practices are dealt with by Section 186(2) of the Labour Relations Act (Act 66 if 1995). The legislation describes it as any unfair act or omission by an employer and includes the following:

• <!–[if !supportLists]–> Unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee, or relating to the provision of benefits to an employee;
• Unfair suspension of an employee or any other unfair disciplinary action in respect of an employee; and
• A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.

Automatic unfair dismissal is dealt with by Section 187 of the Labour Relations Act. A dismissal is automatically unfair if the reason for the dismissal is any of the following:

•  That the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action;
• The employee exercised his/her rights or took part in any proceeding as described in the Labour Relations Act;
• The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy; and
• Race, gender, disability, religion, belief, political opinion, culture, language, marital status, sexual orientation or family responsibility.

Question:

I was employed at a tertiary institution with a fixed term contract for five years.

My contract has been terminated by the institution without warning, half a year before it would have lapsed.

It was alleged that my contract has been terminated due to operational requirements.

Answer:

The member’s case concerns breach of contract by the employer.

When the member entered into the service contract with the employer, the employer created an expectation with the member that the contract would be valid for a term of five years. 

A recent ruling (Buthelezi vs. Municipal Demarcation Board in die Labour Court) made it clear that in the case of a fixed term contract an employer is bound to the contract for the full term of such a contract. Should the employer cancel the service contract, it would mean that the employee has been procedurally and substantively unfairly dismissed.

Parties undertake to remain bound to a fixed term contract for the full term, which is not the case with service contracts with an indefinite term.

It is clear that when parties enter into a fixed term service contract both parties plan their financial obligations with the understanding that the contract will be honoured.

The argument that the employer may have or submit certain reasons to terminate the fixed term service contract is not a valid argument.

The fact remains that when the employer can no longer afford the employee for whatever reason he still may not unilaterally cancel the service contract.

The employer should have entered into a service agreement with the employee for an indefinite term.                           

Remedies:

The employee could refer the case to the relevant forum (CCMA or Bargaining Council) as an unfair dismissal.

Remuneration could be demanded for the outstanding part of the fixed term service contract.

Question:

The Basic Conditions of Employment Act states that certain provisions of the Act do not apply when an employee’s income exceeds a certain level. What is this level and which provisions are excluded? As I understand it, section 10, which deals with overtime pay, is one of these provisions.

Answer:

In terms of section 6 of the Basic Conditions of Employment Act the Minister of Labour must make a determination (on the advice of the Employment Conditions Commission) that excludes the application of Chapter 2 of the Act or any provision of it to any category of employees earning above an amount stated in that determination.

On 13 May 2011 Labour Minister Mildred Oliphant increased the annual threshold earnings (the amount/point where some employees will start to be excluded) from R149 736 (R12 478 p/m) to R172 000 (R14 333, 33 p/m). The term “threshold earnings” means gross pay before deductions, that is income tax, pension, medical fund and similar payments, but excludes similar payments (contributions) made by an employer in respect of an employee.

In terms of the ministerial determination, all employees who earn more than R172 000 per annum are excluded from the following sections of the Basic Conditions of Employment Act:

• Section 9: Ordinary hours of work;
• section 10: Overtime;
• section 11: Compressed working week;
• section 12: Averaging of hours of work;
• section 13: Determination of hours of work by Minister;
• section 14: Meal intervals;
• section 15: Daily and weekly rest period;
• section 16: Pay for work on Sundays;
• section 17: Night work (concerning payment of an allowance or the reduction of working hours as well as transportation); and
• section 18(3): Work on a public holiday on which an employee ordinarily does not work.

A contract of employment is a voluntary agreement between two parties in terms of which one party undertakes to render and subordinate his/her services to the other party in return for determinable remuneration. A contract of employment does not have to be in writing ‒ a verbal or tacit agreement is also valid.

Therefore, a written contract is not a requirement for bringing a valid employment contract into being, but it is advisable to record a service agreement in writing. A written contract provides clarity about what has been agreed upon and prevents possible disputes at a later stage.

The member can, therefore, not force his/her employer to provide a written contract, but it does not mean in the event of a verbal or tacit agreement that the contract between them is less favourable. The employee is still protected by the Basic Conditions of Employment Act which regulates the employment relationship. Section 29 of the Act stipulates that certain details must be provided to the employee upon commencement of his/her service, but these details do not constitute an employment contract.

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

• The employer must determine whether or not the employee is capable of performing his duties.
• The employer must determine for how long the employee will be absent from work owing to illness.
• The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
• The employer must establish whether or not the employee can be reassigned.

By Johan Roos

Answer

In terms of section 31 of the Basic Conditions of Employment Act, an employer must keep records that contain the following information:

• an employee’s name and occupation;
• the time worked by each employee (the duration of employment);
• remuneration paid to the employee;
• the employee’s date of birth if he or she is younger than 18 years; and
• any other prescribed information.

Question:
FNB said that they had obtained legal advice in 2004 and according to that advice the beneficiaries of their black economic empowerment should be exclusively black. Is this true?

Answer:
According to the Broad-Based Black Economic Empowerment Act (Act 53 of 2003) there is no indication that only black people may benefit. This interpretation takes black economic empowerment too far and falls outside of the Constitution.

Question:
Different sectors have different services charters in this regard. What does the services charter of the financial sector say?

Answer:
The charter says that black people should be the primary beneficiaries but not the exclusive beneficiaries. This means that FNB is clearly acting against the charter.

Answered by Phil Davel, Solidarity Legal Services, Service Centre

Answer:

Definition of a bonus: A bonus is a remuneration and is described in Chapter 1 of the Basic Conditions of Service, Act 75 of 1997 (as amended) as: “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and ‘remunerate’ has a corresponding meaning”. It is an extra payment in addition to someone’s normal wage and overtime for good performance of targets attained.
Bonuses are discretionary:
In general it is firstly important to understand that there are no legal conditions in the Labour Law which determine or regulate the payment of bonuses; it is a matter of agreement between the employer and employee and therefore a contractual matter rather than a labour law issue. It therefore follows that if your employer is currently not paying out any bonuses of any nature, it remains discretionary. Bonuses are seldom guaranteed and it would not be expedient to expect this discretionary benefit because bonuses were paid out the previous year. Most service contracts contain conditions which indicate that bonuses are paid at the sole discretion of the employer.
Three basic kinds of bonuses
• The 13th cheque or Christmas bonus: This bonus is usually paid at the end of the year and is a form of acknowledgement and appreciation for excellent service rendered.
• Performance bonus: A performance bonus is paid for good performance and could be a non-recurrent amount which is shared among employees or be based on a percentage of an employee’s salary of wage.
• Production bonus: This kind of bonus is output and target driven and not based solely on company standards. For example the output/production of at least 100 units per employee per month meets a specific quality.
When can an employer be expected to pay out bonuses?
Whether a bonus is payable or not mainly depends on three factors:
1. The terms and conditions of an individual service contract or collective agreement. Where payment of bonuses for example is a 13th cheque is a substantial condition of a contract and is guaranteed, the bonus has to be paid out.
2. The company policy with regards to bonuses. (Note that in these two cases employers usually include exclusion clauses and conditions in their contracts and policies. Examples are the attainment of pre-determined objectives or a specific gross profit margin).
3. The third factor is especially problematic. If an employer has consistently paid out bonuses in the past and has created a substantial expectation with employees that has become an existing “habit and use”, employees have obtained a common-law right that could entitle them to an annual bonus. The problem is that employees sometimes budget for the bonus because of this expectation and it could be unfair if the expected bonus is not paid out. Because the employees have developed a strong right of expectation, it could be strengthened even further if the non-payment of bonuses (due to say a poor trade return) is not communicated to employees well in advance and in time. Although the right of expectation does not constitute an absolute right to claim a bonus, it creates a right to be consulted in advance before the employer decides not to pay out bonuses. Anything from three to six months is a fair period.
What can be done if compulsory bonuses are not paid out?
A unilateral decision not to pay out bonuses could mean breach of contract where an employee could claim damages or even claim for specific compliance in a civil suit (which will in most instances be the case). In terms of section 77(3) of the Act the labour courts enjoy concurrent jurisdiction with civil courts with regard to service contracts and the matter could be referred to them.
For further information or enquiries about bonuses, phone Solidarity’s service centre on 0861-25-24-23.

The sale of an insolvent business

When a company buys a business that is under liquidation, or when a business is sequestrated to save it from insolvency, the employees’ consent is not needed to transfer their contracts of employment to the new employer.

The contracts of all employees that were in existence immediately before the old employer’s winding-up or sequestration transfer automatically to the new employer. However, all the rights and obligations between the old employer and each employee at the time of the transfer remain rights and obligations between the old employer and each employee. Anything done before the transfer by the old employer in respect of each employee, including the dismissal of an employee or unfair labour practice or unfair discrimination, will be considered to have been done by the new employer.

The sale of part of a business

If a company sells an entire division or part of a division, the new company that is established becomes the new employer of the employees  working in that division or part of the division. The employees’ contracts are transferred. The same regulations that apply to the sale of an entire business apply in this case.

Subcontracting as transfer of a business

Subcontracting is a process where external consultants or subcontractors are hired to take over the entire task or function of a specific division, for example, security, cleaning services, gardening services, IT services or catering, in a company. It is common practice for a company to subcontract support functions in order to focus on its core business.

There are differing views on what subcontracting entails with respect to the transfer of contracts of employment in terms of section 197 of the Labour Relations Act. However, there is general consensus that a transfer in terms of the applicable legislation can take place, even if the company who subcontracts the work has significant control over the way the subcontractor provides the service. The mere presence of some form of control is enough indication that a transfer has occurred. The only test to establish if the business was transferred as a “going concern” is to determine the substance and content. It is important to establish all the relevant facts, as a single fact in isolation cannot be regarded as sufficient.

Question: The company I work for is going to be sold and there is talk that staff may be laid off. Is the new employer permitted to lay off staff?

Answer: Employees may be laid off in these circumstances for operational reasons. The process of cutting back on staff is known as dismissal on operational grounds, or retrenchment. However, an employer may not simply lay off an employee.

Operational grounds include the following:

• An employer’s economic requirements, for example, when the sales of the company’s product dropped drastically and the company can no longer afford a large staff component.
• A company’s structural requirements, for example, when departments of a hardware store are merged, leading to a duplication of certain functions.
• Technological reasons, for example, when machines are introduced to perform functions carried out by workers in the past. 
• Other similar requirements or reasons, for example, the sale of an existing or insolvent business or part of a business. 

Therefore, there must be sufficient grounds for laying off employees.

Question:
I would like to put in a grievance at my work, but am not sure how to go about it. I would also know whether it will help me at all.

Reply:
Grievance procedures are not regulated through legislation. Employers are therefore not  compelled to have a specific grievance procedure, but most employers do have one. Grievance procedures are put in place by the employers, and in most cases the human resources division l head the grievance procedure. This division implements a grievance policy regulating the procedure.

Before one takes a case of unfair labour practices, victimisation or discrimination further, all internal solutions must have been exhausted. The grievance procedure is one of these internal solutions which has to be followed. It is important to emphasise that if you make allegations against a person about victimisation or discrimination, you must be able to prove it substantively. The person against whom a grievance has been submitted, can take civil action if you have made false accusations.

If your workplace does not have a grievance procedure in place, write letters to the employer. These must then be escalated systematically to the highest level in the organisation. These letters serve the same purpose as the grievance procedure.

CASES ON BUSINESS RESCUE

1. Riaan Anton Swart / Beagles Run Investments 25 (Pty) Ltd & 3 Others – Case No. 26597/2011 (NGHC – 30 May 2011)

1.1            Business rescue application dismissed with costs

1.2            On facts, no reasonable prospect of rescue

1. Cash on Demand (KZN) (Pty) Ltd / Mogwele Trading 284 (Pty) Ltd – Case NO. 2646/2011 (KZNHC – June 2011)

2.1            Business rescue application dismissed with costs, final liquidation order granted

2.2            On facts, no reasonable prospect of rescue

1. Cape Point Vineyards (Pty) Ltd / Pinnacle Point Group Ltd & 2 Others – Case No. 12746/2011 ( WCHC – 11 August 2011)

3.1            Business rescue application granted

3.2            Court has power to award costs to applicant for business rescue

3.3            Court discussed ambit of obligation to “notify” affected parties and permissible methods of doing so

1. Investec Bank Ltd / Andre Bruyns Case No. 19449/11 (WCHC 14- November 2011)

4.1            Summary judgment application granted against defendants

4.2            Section 133 (1) moratorium to principal debtor does not avail sureties

1. Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country and Others (WG and Y Koen intervening) (27956/2010) (WCHC – 16 November 2011)  

5.1            Koens’ application to stay winding up application pending determination of BR application in ECHC dismissed with costs

5.2            Winding up application postponed for 1 week

1. Southern Palace Investments 265 (Pty) Ltd v Midnight Storm Investments 386 (Pty) Ltd (15155/2011) (WCHC – 25 November 2011)

6.1            Business rescue application dismissed with costs

6.2            Application should only be granted if “concrete and objectively ascertainable details [are given] going beyond mere speculation”

1. William George Koen & Another / Wedgewood Village Golf & Country Estate (Pty) Ltd & 3 Others – Case No. 24850/11 & (Eastern Cape PE Case No. 2448/11) (WCHC – 9 December 2011)

7.1            Business rescue application dismissed with costs

7.2            Endorsed approach in Southern Palace – “cogent evidential foundation” required to support existence of a reasonable prospect of rescue

7.3            Fatal failure to disclose identity of “mystery potential investor”

1. First Rand Bank Ltd v Imperial Crown Trading 143 (Pty) Ltd (12910/2011) (KZNHC – 15 December 2011)

8.1            Provisional winding up order granted, with extended return date to allow for bringing of business rescue application by an affected party

8.2            Court discussed section 131(6) – suspension of liquidation proceedings by application for business rescue

1. Ex Parte Imperial Crown Trading 143 (Pty) Ltd (in liquidation) – Case No. 756/12 – UZNHC – 27 January 2012)

9.1            Provisional liquidators authorised to conclude a lease agreement on behalf of the company in terms of Section 386(5) of Companies Act 61 of 1973

9.2            Court has power to give such authority even in face of pending business rescue application, in terms of Section 133(1)(b) of Companies Act 71 of 2008

1. Marley Pipe Systems (Proprietary) Limited & 1 Other / Petzetakis Africa (Pty) Ltd & 5 Others – Case No. 35891/2011 (SGHC – 6 February 2012)

10.1          Applications for postponement of business rescue application in order to supplement founding papers dismissed, provisional liquidation order granted

10.2          Court considered status of alternative object under definition of “business rescue” in section 128(1)(b)

1. Oakdene Square Properties (Pty) Ltd & 3 Others / Farm Bothasfontein (Kyalami) (Pty) Ltd & 2 Others. Case No 35199/2011 & Case No 24545/2011 (SGHC – 17 February 2012)

11.1          Business rescue application dismissed with costs, final liquidation order granted

11.2          Court considered circumstances where liquidation preferable to business rescue – eg. company involved in major litigation, no financial records available, company’s major asset is immovable property subject to a disputed lease

(Author: Mr. Johan Engelbrecht: Icon Insolvency Practitioners (Pty) Ltd)
Email: johan@iconinsolvency.co.za
Web: www.iconinsolvency.co.za

By Ilze Nieuwoudt

Question: From what age may a child be employed?

Answer: According to the Basic Conditions of Employment Act, it is a criminal offence to employ a child younger than 15 years. Moreover, a child between the ages of 15 and 18 are not allowed to be employed in a position which could either put their lives in danger or which could be considered as inappropriate for a child.

There are however a couple of exceptions. One such exception stipulates that a child of 15 years or younger may be employed in the performing arts with a valid permit from the Department of Labour.

According to legislation, a child may not be employed in a position which would be considered as exploitation, dangerous or otherwise inappropriate for the child’s age. The child’s social, physical, spiritual and moral development as well as level of education should be taken into regard to determine the appropriateness of the employment.

It is estimated that more than 115 million children worldwide are trapped in serious forms of child labour. Child labour in South Africa is mostly reported in the agricultural sector and represents approximately 60% of reported cases of child labour.

The Department of Labour announced its plans to eradicate child labour in South Africa during the National Day against Child Labour which was held on Monday, 4 April.

An employer has the right to ask an employer or a job applicant to indicate whether or not he/she belongs to a trade union. However, an employer may not discriminate against an employee or a jobseeker on the basis of his/her membership of a trade union. For practical and operational reasons, employers often need to know which of their employees belong to trade unions and to which unions they belong. Employers, for example, need to know who represents their employees during consultations regarding retrenchments.

Employees or job applicants may be unwilling to reveal that they belong to a trade union out of fear of discrimination. Section 5(2)(c) of the Labour Relations Act (LRA) prohibits an employer from discriminating against an employee or a person seeking employment on the basis of previous, current or even potential membership of a trade union, or for disclosing information that the employee or jobseeker may or has to supply to another person, including information such as membership of a trade union that is supplied to another person.

The generally accepted rule is that an employer is entitled to honest answers to all questions during an interview. Moreover, a job applicant may not withhold information that would have prevented the employer, had he known about it, from entering into a contract with the applicant. An employer is therefore entitled to accurate information that is crucial for deciding whether or not to employ a jobseeker. If an employer discriminates against a jobseeker once his/her membership of a trade union has been disclosed, the merit of the case will be decisive and the jobseeker will have to prove on a balance of probability that the rejection of his/her application, or any discrimination to which he/she was subjected was the result of the disclosure in terms of section 5(2)(c)

In SAFDWU v. Safcor Freight (Pty) Ltd t/a Safcor Panalpina and Another (D104/08) [2010] ZALC 107; (2011) 32 ILJ 415 (LC) the court adhered to the principle that you may not be discriminated against for being a member of a trade union, as it is a violation of section 5 of the LRA and an infringement of your fundamental rights as defined in sections 9 and 23 of the Constitution of South Africa.

 

By Ettiene Pio

Question

I am a senior manager and my contract of employment prohibits me from being a member of a trade union.  How valid is this contractual prohibition?

Answer

Any contractual provision which is against a law is invalid and if such a provision also contravenes the Constitution of our country, it is unconstitutional as well.  Article 18 of the Constitution determines that everyone has the right to freedom of association and in chapter 2 of the Labour Relations Act the right of freedom of association is also ensured in detail.

Briefly, the right of freedom of association includes the right to: participate in the founding of a trade union; become a member of a trade union; participate in legal trade union activities; to participate in elections and to make yourself available for election as a trade union office bearer or official.

A senior manager is still an employee and definitely has the unrestricted right to join a trade union despite the explicit prohibition in his contract of employment.  Therefore, the prohibitive provision in the contract is illegal, unconstitutional and invalid.

However, each employee and specifically senior management also has confidentiality and contractual duties towards the employer.  When using your right to freedom of association, make sure that you do not make yourself guilty of a breach of contract or confidentially. The danger of this can, for example, especially lie in a situation where a senior manager wants to participate in wage negotiations as both a representative of the employer and as a trade union shop steward, or when confidential information is made available to trade union shop stewards which they may not obtain otherwise.  The right to freedom of association does not, therefore, exempt an employee from complying with fiducial and contractual obligations.   A senior manager may thus face disciplinary action if her behaviour as a member of a trade union amounts to a breach of fiduciary and contractual obligations.

Conclusion: Senior managers are welcome to join Solidarity as a trade union for individual and collective protection.  But be careful; once such a person accepts a position of leadership as a trade union shop steward or office bearer, his behaviour should still meet his fiducial and contractual obligations to the employer.

Question

I work for a pharmacy. My employer and I agreed in my contract of employment that I must give eight weeks’ notice if I want to resign after more than a year’s service. The contract also specifies that I must be aware of all the policies of the pharmacy and the rules that are applicable to me.

I gave eight weeks’ written notice to the employer, but the manager is insisting that I leave a month earlier, because the policy states that employees must give only 30 days’ notice. I won’t be able to leave a month earlier, as I did not make provision for it financially. What should I do now?

Answer

Section 37(1) of the Basic Conditions of Employment Act (No. 75 of 1997) states that if an employee has been employed for a year or longer, a minimum of four weeks’ notice is required upon resignation. Nothing prevents the parties from mutually agreeing on a notice period that is longer than the prescribed minimum period. Such an agreement will (subject to subsection 3 which states that the notice period for an employee may not be shorter than the notice period for the employer) will therefore be entirely valid.

In your case, you and your employer negotiated a fundamental condition of employment and reached an agreement on the provisions of resignation, namely that you mutually agreed that you must give eight weeks’ notice if you have been employed for longer than 12 months.

Conditions of employment cannot be changed one-sidedly. Merely citing the policy (which can be changed one-sidedly) would go against the stronger right obtained through bargaining.

Our advice is therefore that you invoke the provisions of your contract of employment that were negotiated beforehand, namely that you must give eight weeks’ notice. This provision is in line with section 4(c) of the Act, which states that a provision in a contract that is more beneficial for the employee must be specified as such.

Question:

I am currently employed as a welder but experience a severe condition of rheumatism with the result that I cannot always use my hands properly. Can the employer simply dismiss me?

Answer:

Disability can be temporary or permanent. If temporary, the employer should do a thorough check-up of the disability. If permanently disabled the employer should investigate the possibility of alternative employment or adapt the duties or working conditions of the employee in order to accommodate the employee’s disability.

The employee should have the opportunity of a fair hearing and to be assisted by a trade union representative or fellow employee.

The following should be considered to determine whether the dismissal, if appropriate, is fair:

1. Is the employee able to work or not?
2. Extent to which the employee is able to work;
3. Extent to which the employee’s working condition can be adjusted in order to accommodate the disability, and
4. Adjustment of the employee’s duties.

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

• The employer must determine whether or not the employee is capable of performing his duties.
• The employer must determine for how long the employee will be absent from work owing to illness.
• The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
• The employer must establish whether or not the employee can be reassigned.

By Johan Roos

Answer:
We must have a look at schedule 8 of the Labour Relations Act in order to answer this question.

Disability on the grounds of poor health or injury may be temporary or permanent. Your employer should consider the extent of your disability or injury if you are temporarily unable to work. However, if you have to be booked off “unreasonably” long, your employer should look at all alternatives (short of dismissal). He should then consider factors such as the nature of your job, the likely duration of your absenteeism, the seriousness of your illness or injury, and the possibility of appointing a temp in your place.

If you are declared permanently disabled, your employer should investigate the possibility of alternative employment or the adaptation of your duties or working conditions. You have the right to be heard during such an investigation, and a shop steward or colleague may assist you.

If indeed dismissal is on the cards, the degree of your disability should be considered in order to reach a decision about the fairness of your dismissal.

The cause of your disability may also be important. For instance, if alcoholism or drug abuse has been a factor in your disability, your employer may want to consider counselling and rehabilitation as the appropriate steps to be taken. However, if you have suffered an injury while on duty or have contracted a job-related illness such as miners’ silicosis, the courts would probably find that your employer had an even greater obligation to accommodate your disability.

If you feel that your dismissal on the grounds of poor health or an injury was unfair, the court would want to know whether your employer had tried to determine the extent to which you might have been able to continue working, regardless. In addition, the court would want to know if it were not possible to adapt your job situation and/or duties so as to accommodate your disability. And finally, the court must be satisfied that your employer were utterly unable to place you in another suitable job.

Question:

Yesterday I received a written warning about incompetence. My boss has just called to let me know that my hearing is this afternoon. What are my rights? Can I take it to the Commission for Conciliation, Mediation and Arbitration (CCMA)?

Answer:

At this stage, the CCMA cannot be of much assistance because an employer must first apply and exhaust internal grievance procedures. In addition, the employer did not take unfair illegal action against the employee, since they are entitled to establishing and applying the procedures.

However, it is strange that the employer gave the employee a written warning and then still wants to conduct a hearing. A written warning is already the sanction that follows a conviction at a hearing.

Whatever the case may be, a hearing must be preceded by a written notice of the hearing as well as the charge, time and date of the hearing, and the right to be represented. The employee must also be given enough time to properly prepare for the hearing. Failing this, the employee can apply in writing for the hearing to be postponed.

Question:

I am facing disciplinary action and I don’t know what to expect in the hearing.

Answer:

Firstly, it is important for the employee to receive the charges against him/her in writing, in a language he/she understands. The employee must also be informed of the date, place and time of the disciplinary hearing. The employer must give the employee enough time to get a representative. Such a representative may be a colleague or a trade union representative from a trade union that is recognised at the workplace.

The employee must be asked to plead. If the employee pleads guilty, the matter cannot be taken further because the employee has already admitted guilt.

The employee must be given a reasonable period of time to prepare for the hearing. A reasonable period is measured according to the difficulty of the hearing. If the employee maintains that the time allotted is insufficient, the employee must request a postponement of the hearing. The presiding officer will decide whether or not to grant the postponement.

Question:

I am facing disciplinary action and I don’t know what to expect in the hearing.

Answer:

Firstly, it is important for the employee to receive the charges against him/her in writing, in a language he/she understands. The employee must also be informed of the date, place and time of the disciplinary hearing. The employer must give the employee enough time to get a representative. Such a representative may be a colleague or a trade union representative from a trade union that is recognised at the workplace.

The employee must be asked to plead. If the employee pleads guilty, the matter cannot be taken further because the employee has already admitted guilt.

The employee must be given a reasonable period of time to prepare for the hearing. A reasonable period is measured according to the difficulty of the hearing. If the employee maintains that the time allotted is insufficient, the employee must request a postponement of the hearing. The presiding officer will decide whether or not to grant the postponement.

The employee must then be given the opportunity to cross-examine the employer’s witnesses. It is also important that the employee presents his/her version of events to the employer’s witnesses. If there are conflicting statements, the employee will have to give evidence and explain why there are discrepancies.

The presiding officer must grant the employee the opportunity to relate his/her side of the case to the employer and to present evidence to the employer. After the hearing, the employer must communicate the outcome of the hearing to the employee, preferably in writing. If the employee is to be dismissed, the employer must provide reasons why it is the appropriate sanction and explain how the decision was reached by the employer.

If the employee wants to refer a case of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA), it must be done within 30 days.

For further information regarding disciplinary hearings, please call Solidarity’s legal experts at 0861 25 24 23.

Question:

A disciplinary enquiry was recently held in my division. I found it totally unnecessary. It just upsetting to everyone and I still don’t know what the purpose of the enquiry was. Could you give me more information regarding disciplinary enquiries?

Answer:

The purpose of an enquiry is to determine:

• Whether a rule or norm that arranges behaviour in or concerning a work place has been transgressed;
• Whether the rule or norm is a valid of reasonable rule or norm;
• Who has transgressed a rule or norm;
• What the circumstances surrounding the transgression were;
• What the nature of the work was that has been affected by the transgression of the rule or norm;
• How serious the transgression of the rule or norm was and whether the transgression makes a continued employment relationship untenable;
• What the circumstances of the employee(s) were who transgressed the rule or norm, and whether he/she has been aware of the norm or should reasonably have been aware of it;
• Whether the rule or norm was applied consistently by the employer; and
• What the suitable disciplinary sanction for the transgression of the rule or norm is.

Question:

The company where I work is acting reasonably well within the Labour Act when it comes to disciplinary hearings. Recently there was a case where employees were uncertain whether they could get legal representation or not. What are the Labour Act provisions and could Solidarity help us?

Answer:

To answer the question fully it is important to distinguish between representation and legal representation. Any person against whom disciplinary action is taken, is

entitled to representation to comply with the audi alterem partem rule (“listen to the other side”). In the case Molope v Commissioner Mbha & others (2005) 26 ILJ 283 (LC) the Labour Court once again confirmed that the employee is entitled to representation and that it is not an allowance by the employer. A disciplinary hearing is an internal investigation and the accused is therefore entitled to internal representation. Section 4 of Schedule 8 of the Labour Relations Act determines that a person who is disciplined, is entitled to support by a shop steward or a co-worker.  In spite of the provisions of Schedule 8, the employer’s disciplinary code usually determines who could represent an accused. The conditions of the code may not be less favourable than that of Schedule 8. At employers where trade unions are recognised as bargaining agents, collective agreements are usually entered into to address the matter of representation. Once again the conditions of an agreement may not be less favourable than the provision of Schedule 8.

Legal representation is a person who practises as an attorney or advocate. As mentioned an employee is only entitled to internal representation, but such person is only entitled to external legal representation by an advocate, attorney or consultant if:

• the employer’s disciplinary code makes provision for it;
• the employee’s service contract makes provision for it;
• both parties agree to it; or
• after submission of an application by the accused and if the presiding officer allows it.

With regard to the last conditions a few salient items are emphasised. In the case MEC: Department of Finance, Economic Affairs & Tourism (Northern Province) v Mahumani (2004) 25 ILJ 2311 (SCA) the Appeal Court found that a presiding officer should not lose sight of an employee’s right to only be represented by an internal representative.

An employee requiring external legal representation should submit an application to legal representation at the presiding officer and base the application on the following:

• the nature of the complaints against him/her;
• the complexity of the case;
• the gravity of the transgression;
• the competence (or lack of competence) of available internal representatives;
• the standard, qualifications and competence of the prosecutor and presiding officer. The presiding officer should then hear the application for legal representation and if he does not wish to grant representation, he should provide reasons for his decision.

By Johan Roos

Question: May Solidarity represent me in a disciplinary hearing?

Answer: According to section 14(4)(a) and section 200 of the Labour Relations Act, an employee is entitled to representation by a trade union. However, section 14(1) of the Labour Relations Act stipulates that a trade union may only represent the employee if the trade union represents more than 50% of the employees at the workplace in question. In other words, sections 200 and 14(4)(a) only apply if a trade union has majority representation or if a collective agreement is in force. If the employer gives written permission, the trade union is also allowed to represent the member

07 January 2011

“I’m facing a disciplinary hearing and I don’t know what to expect!”

It’s first of all important that you as employee receive the charge(s) against you in writing and in a language that you understand. Then you must be notified of the venue and time of the hearing. The employer must allow you the time to find a representative; he/she could be a colleague or a trade union representative of a recognised trade union in the workplace.

Furthermore you should be asked to plead. If you plead guilty, however, you will not be able to take the case any further.

You must be allowed a reasonable period to prepare for the hearing. “A reasonable period” is usually linked to the degree of complexity of the hearing. Should the employee insist that the allotted time was insufficient he/she must request that the hearing be postponed, which decision rests with the presiding officer.

You should have an opportunity to cross-examine the employer’s witnesses, but it’s also important that you put your account of the issue to them. You must be able to explain any difference(s) between the two accounts.

Finally, the presiding officer must allow you the opportunity to present to the employer your side of the matter — together with proof, if necessary.

After the hearing the employer must inform you of the finding of the hearing, preferably in writing. If you are dismissed, the employer must state the reason(s) for his decision. Should you regard it as unfair dismissal and you wish to refer the matter to the CCMA (Commission for Conciliation, Mediation and Arbitration), you should do so within 30 days

By Johan Roos,

20 January 2011

Question:

Can I be suspended before a disciplinary hearing is held?

Answer:

There are mainly two types of suspension.

The first type is applied as a preventative measure when an employer wants to investigate a matter involving an employee. In this case, the employer wants to remove the employee from the situation to ensure that the investigation can be carried out without any interference.

The second type occurs when an employee is found guilty of an offence and the employer applies the sanction of suspension. In this case the employee is suspended following a disciplinary hearing.

The first type of suspension occurs with pay and is not a disciplinary sanction, that is, the employer may not use it to enforce discipline. Suspension as a disciplinary action usually occurs without pay and is regarded as a means of enforcing discipline in the workplace

When an employee is at risk of being suspended, he or she must be given the opportunity to give reasons why he or she should not be suspended. It must also be determined whether the employer’s disciplinary code makes provision for suspensions and what the process entails.

An employee’s suspension may not be drawn out necessarily and a company’s policy may determine that suspensions must be reviewed after a specified period. If an employee’s suspension drags on, it could have a negative psychological impact on him or her. The employer also risks losing the respect of his or her employees, as they might assume that their colleague has been dismissed

1.     Question:
I work for a large hardware chain store and I have heard from colleagues that the employees in our division are going to be retrenched. The boss says we are not making money and is blaming the recession. I am worried that I might be one of the employees selected to go. Are there specific selection criteria with which my boss has to comply?

Answer:
The Labour Relations Act does not prescribe specific selection criteria, but it does give a few guidelines. 

However, if selection criteria are agreed upon during the consultation process, the employer must comply with these criteria. If there are no agreed criteria, the process must at least be fair and objective.

Two well-known measures are Lifo (last in, first out) and Fifo (first in, first out). Although Lifo is internationally recognised and applied, it could have a neutralising effect on required affirmative action in South Africa. This is because Lifo determines that the employees who were last to be employed by the company are the first to be considered for retrenchment.

2     Question:
I work for a large hardware chain store and I have heard from colleagues that the employees in our division are going to be retrenched. We have already had consultations and it seems as though there is no alternative to retrenchment and that I will in fact be retrenched. I have been working at the group for nine months. Can my boss simply give me 24 hours’ notice? Shouldn’t he at least give me some assistance?

Answer:
This is the second last part on this topic. If an employee is going to be dismissed on operational grounds, he/she at least has the right to be informed of the retrenchment in order to be able to look for new work as soon as possible.

Different notice periods apply in terms of the statutory requirements of the Basic Conditions of Employment Act (Act 75 of 1997).
They are:

1. One week if the employee has been employed by the company for six months or less;
2. Two weeks if the employee has been employed by the company for longer than six months but less than a year; and
3. Four weeks if the employee has been employed by the company for more than a year.

Information that needs to be included in the employee’s letter of termination includes the reason for the retrenchment, when the consultation took place, the last day on which the employee would be required to work, as well as a description of how the severance package would be paid out.

It is important to remember that Section 189(3)(g) of the Labour Relations Act determines that the employer must state in writing what assistance the retrenched employees will receive. However, there is no legal obligation on the employer to render any assistance if it is not stated in the retrenchment agreement. They can simply take the time off or grant a few days’ leave in order to enable the employees to attend interviews. They do not need to physically help the employees to find work.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:

1. Misconduct
Misconduct is the most common justification for dismissal in South Africa, but there is no definition for it in statutory of business law. Misconduct can take on many forms although the legal basis for dismissal is the same in most cases. The employee in some way contravened the terms of their contract, or broke the relationship of trust between him/her and the employer. Misconduct is often described as a wilful contravention of a rule laid down in the workplace by the employer.
The source of this rule is usually summarised in the employee’s contract or in a policy or disciplinary code of the company, or it is a general practice in the workplace that could perhaps justify dismissal. If the employer has not implemented his/her own disciplinary code, the Labour Relations Act (Act 66 of 1995) makes provision by means of Schedule 8 of the Code of Good Business Practice, but it is generally accepted that this is only regarded as a guideline.
Before dismissal for misconduct can take place, the following questions must be answered:
• Has a rule in the workplace been contravened and does the rule relate to the workplace or those regulating the workplace?
• Is it a valid rule?
• Was the employee aware of the rule or can it reasonably be expected that the employee was aware of the rule?
• Was dismissal the appropriate sanction for the dismissal?
2. Inability to work
Inability to work can be divided in two categories:
• Inability due to illness or similar external factors; and
• Poor job performance relating to the quality of work performed by the employer.
In the case of poor job performance, the employee can improve the quality of his/her work. The employer must also first follow the steps in the Code of Good Business Practice in the Labour Relations Act before such a dismissal can be justified.
Inability due to illness or other similar factors means that the employer cannot perform his/her duties owing to illness and the employer therefore has no other choice but to dismiss the employee. Therefore, the dismissal is due to operational requirements and not due to any fault or misconduct for which the employee himself/herself is responsible. The guideline in the legislation is also contained in the Code of Good Business Practice of the Labour Relations Act. There are also additional guidelines on the steps that need to precede dismissal:
• The employer must determine if the employer is able to do the work.
• The period of the employee’s inability to do the work must be determined.
• The employer must determine if adjustments can be made in order to make it possible for the employee to perform his/her duties.
• The employer must determine if an alternative can be found.
3. Dismissal due to operational requirements
Operational requirements refer to those requirements based on economic, technological, structural or other reasons. They could arise due to circumstances such as international economic pressure or the implementation of a new system. Circumstances such as these might place the employer in a position where he/she has to dismiss employees due to operational requirements.
The procedure for this is encapsulated in Section 189 of the Labour Relations Act (Act 66 of 1995), but Sections 40, 41 and 83 of the Basic Conditions of Employment Act (Act 75 of 1997) should also be taken into consideration. The principal factor here is that the employees are not necessarily responsible for the dismissal. The factors are out of the employee’s control and relate to the steps that the employer must take to protect his/her business against financial failure.
For more information about dismissal, please call Solidarity’s legal experts at 0861 25 24 23.

Phil Davel

Question:

My employer is making my working my conditions unbearable. She is constantly finding fault with everything and shouts at me. This cannot carry on and I want to resign. Can I resign? Can I claim constructive dismissal because she is the reason I want to resign?

Answer:

Definition of constructive dismissal:

Constructive dismissal is “a situation in the workplace, which has been created exclusively by the employer, and which renders the continuation of the employment relationship intolerable for the employee – to such an extent that the employee has no other option available but to resign, with or without notice, or to simply leave the employment of the employer.”

In other words, the employee is compelled to resign due to unfair pressure, unreasonable instructions or unbearable behaviour caused or created by the employer (thus, “constructive dismissal”).

The Labour Relations Act (LRA) 66 of 1995 (as amended) gave statutory status to constructive dismissal. Section 186(1)(e) determine that “dismissal” means, among other things, that “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

Therefore, constructive dismissal is subject to a number of requirements, which we will look at later. For now it is important to remember that if the above-mentioned statutory description applies, the Act deems the employer to have unfairly dismissed the employee, which amounts to “unfair labour practice” in terms of the LRA.

Burden of proof

With conventional dismissal, it is up to the employer to prove that the dismissal was procedurally and substantively justified and fair. With constructive dismissal, however, the burden of proof rests on the employee, who must prove constructive dismissal on a balance of probabilities (In the case of Jooste v Transnet).

Once the employee has discharged the onus of proving that he/she was constructively dismissed, the onus shifts to the employer to prove that the employees action of resigning was unreasonable (in accordance with Section 192 of the LRA).

Requirements for constructive dismissal

Since the implementation of the LRA, court cases and the authority relating to alleged constructive dismissal have established four requirements for the employee to prove before he/she could possibly be successful.

1. The employee must demonstrate that he/she resigned or terminated the contract:
   This is mostly simple to prove and depends on the facts of each case.
2. The reason for the resignation was because continued service was “intolerable”:
   This is an objective test of whether or not the situation can be tolerated and does not depend on the employer’s perception or personal opinion (subjective) of whether the situation was intolerable (Watt v Honeydew Dairies (Pty) (Ltd)).
   However, writers such as J Grogan believe that the test is partially subjective and partially objective provided that the employer’s perception was reasonable. Additionally, the employee must prove that he/she would have continued working if it were not for the employer’s conduct. In other words, the employee should not already have planned on resigning (Jooste v Transnet Ltd t/a SA Airways). The employee should also have reasonable believed that the employer would not have reformed and ceased the unreasonable and intolerable conduct.
3. It was the employer’s conduct that created the intolerable situation:
   There must be a link between the employer’s conduct and the situation that caused the employee to resign. The question is whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy it, or seriously damage the relationship of confidence and trust between employer and employee. (Pretoria Society for the Care of the Retarded v Loots).
4. The employee is required to have exhausted all internal procedures and that resigning was the last reasonable. This would demonstrate that the internal grievance procedure did not provide any remedy and that the employee was really left with no choice but to resign. (In Pieterse v AGI (Pty) Ltd the applicant’s claim for constructive dismissal was unsuccessful because he did not first follow the formal grievance procedure).

Disputes

Disputes regarding possible constructive dismissal must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant bargaining council and the employee can request compensation or re-employment (providing, of course, the intolerable situation no longer exists).

Constructive dismissal is difficult to prove
Without providing examples of cases for possible constructive dismissal (because there are numerous examples and the facts of the individual cases are different), it must be kept in mind that most claims for constructive dismissal are rejected by the CCMA as unfounded.

Therefore, an employee must be aware of the scope and degree of difficulty involved in proving constructive dismissal. Especially in light of the fact that if an employee resigns and his/her claim for constructive dismissal is unsuccessful, the resignation remains in force. This could have serious financial implications for the employee and entail protracted legal processes.

For more information regarding constructive dismissal, contact Solidarity’s legal experts at the service centre at 0861 25 24 23.

By Phil Davel

Employees must lay down clear rules on conduct in the workplace to ensure employees know what is expected of them and what the consequences will be should they violate any of the rules.

Certain rules, for example, rules dealing with intoxication or violence in the workplace, are so common or obvious that they are not necessarily laid down in a code of conduct, although employees may be expected to obey them.

Discharge owing to misconduct may be justified ‒

• if the employee violated a rule or regulation relating to specific conduct in the workplace;

• if the rule that was violated was valid, reasonable and fair;

• if the employee was aware or can reasonably be expected to have been aware of the rule in question;

• if the rule is consistently applied in the workplace; and

• if discharge would be more suitable than a disciplinary penalty in the specific circumstances.

Discharge for a first offence is usually not acceptable, except if the offence was of such a nature that it makes a continued employee-employer relationship impossible. Examples of such offences include dishonesty, theft, malicious injury to property, assault and gross insubordination.

Every case must be judged on merit and factors such as the underlying circumstances, how long the employee has worked for the company, the nature of the work and previous warnings must be taken into consideration.

By Phil Davel

The previous legal questions on the topic of dismissal can be read here:

• What is dismissal and how does it work?

• What does automatically unfair dismissal entail?

• Discharge owing to misconduct

What does dismissal due to poor job performance entail?

Employers regularly follow the route of dismissing employees for poor job performance. However, finding an employee guilty of poor job performance is not so simple. Dismissal owing to poor job performance must be based on reasonable grounds and can only take place once a fair procedure has been followed.

In deciding whether an employee’s dismissal due to poor job performance is justifiable, it must first be determined whether or not the employee meets the required performance standards. If the employee does not meet the required performance standards, it must be determined whether ‒

- he or she had knowledge of the required performance standards and whether it can reasonably be expected of him or her to have knowledge of them;

- he or she was given a fair chance to meet the required performance standards; and

- dismissal will be a suitable penalty for noncompliance with the required performance standards.

It is therefore important for clear performance standard guidelines to be set and for employees to be given a fair chance to comply with them. For that reason, dismissal due to poor job performance in the case of a first offence will usually constitute unfair dismissal.

For dismissal to be fair, the following procedure must be followed: - The employee must have been given sufficient training and advice;

- the employee’s job performance must have been monitored over a reasonable period; and

- the reasons for the employee’s ongoing poor performance and possible solutions to the problem must have been investigated thoroughly

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

• The employer must determine whether or not the employee is capable of performing his duties.
• The employer must determine for how long the employee will be absent from work owing to illness.
• The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
• The employer must establish whether or not the employee can be reassigned.

Answer:

Misconduct is the most common justification for dismissal in South Africa, but neither the statue law, nor the law of things contains a definition of misconduct. Misconduct can take on many forms, but the legal basis for dismissal is usually the same: The employee violated the regulations of his or her contract in one way or another, or broke the relationship of trust between him or her and the employer.

Misconduct is often defined as an intentional violation of rules in the workplace. These rules are usually set out in an employee’s contract or in a policy or a disciplinary code of the company, or are general practices in the workplace that could justify dismissal. If an employer has not implemented a disciplinary code, Schedule 8 of the Code of Good Practice in the Labour Relations Act will apply, but it is generally regarded as a guideline only.

Before dismissal owing to misconduct can take place, the following questions must be answered:

• Was a workplace regulation violated and does that regulation relate to keeping order in the workplace?
• Is it a valid regulation?
• Was the employee aware of the regulation, or can it be reasonably assumed that the employee was aware of the regulation?
• Is dismissal a suitable sanction for the specific misconduct?

By Johan Roos

Answer:
We must have a look at schedule 8 of the Labour Relations Act in order to answer this question.

Disability on the grounds of poor health or injury may be temporary or permanent. Your employer should consider the extent of your disability or injury if you are temporarily unable to work. However, if you have to be booked off “unreasonably” long, your employer should look at all alternatives (short of dismissal). He should then consider factors such as the nature of your job, the likely duration of your absenteeism, the seriousness of your illness or injury, and the possibility of appointing a temp in your place.

If you are declared permanently disabled, your employer should investigate the possibility of alternative employment or the adaptation of your duties or working conditions. You have the right to be heard during such an investigation, and a shop steward or colleague may assist you.

If indeed dismissal is on the cards, the degree of your disability should be considered in order to reach a decision about the fairness of your dismissal.

The cause of your disability may also be important. For instance, if alcoholism or drug abuse has been a factor in your disability, your employer may want to consider counselling and rehabilitation as the appropriate steps to be taken. However, if you have suffered an injury while on duty or have contracted a job-related illness such as miners’ silicosis, the courts would probably find that your employer had an even greater obligation to accommodate your disability.

If you feel that your dismissal on the grounds of poor health or an injury was unfair, the court would want to know whether your employer had tried to determine the extent to which you might have been able to continue working, regardless. In addition, the court would want to know if it were not possible to adapt your job situation and/or duties so as to accommodate your disability. And finally, the court must be satisfied that your employer were utterly unable to place you in another suitable job.

By Phil Davel

Question

My question is about my wife and her employer. She is being given trouble about creditors that she processed incorrectly, but she was never formally trained in the company’s creditors. She was merely shown what to do by the previous incumbent of the post before this person resigned. Her employer now wants to dismiss her.

Answer

The employer cannot dismiss your wife or disadvantage her[cause problems for her] without a fair and just procedure, especially in the case of poor performance and dismissal. The Labour Relations Act, under item 9 of Schedule 8, provides for a code of conduct that stipulates that an employee must know what the work standard or procedures entail and must be given the time and opportunity to achieve the required standard of work. Should she feel that het training was inadequate or ineffective, she could put this up as a defence.

The guidelines that must be considered before she is dismissed because she does not meet the required standard of performance are whether she knew what the required standard of performance entailed and whether she could be expected to be aware of it. She must, as was said, be granted a fair chance and time to achieve the required standard of performance. In addition, before she is dismissed, it must be clear that dismissal is the most suitable punishment for the transgression. In most cases, summary dismissal is not the most suitable punishment because the supposed problem could still be rectified by proper training and/or mentorship.

The employer therefore cannot simply dismiss her at the first transgression.

By Gerhard Hildebrand

Question

I was unfairly dismissed by my employer and referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).  However, before the dispute could be heard by the CCMA, the employer contacted me about a possible settlement.  I presented a settlement proposal to the employer and the employer addressed a letter to me in which they accepted the settlement I had proposed.  I am however no longer satisfied with the settlement and would like the dispute to come before the CCMA.  Can I continue with the dispute?

Answer

An agreement is reached when an offer is made to another party and that party accepts the offer.  Thus there is an offer and the acceptance thereof.  It is not necessary for the offer to be set out in writing and the acceptance of the offer also does not have to be in writing.

After the offer is accepted, the party who made the offer cannot retract it and the contractor can legally hold the offeror to the offer.  However, if the offeror withdraws the offer before it is accepted, no agreement is reached.  If the contractor makes a counter suggestion, no agreement is reached unless the suggestion is accepted by the other party.  After the offer is accepted, the contractor also cannot withdraw the offer.

According to the facts as set out in this legal question, an agreement was reached and the employer cannot continue with the CCMA dispute.  The dispute was settled by the agreement.  The employer will be able to content that, since a lawful agreement was entered into, the dispute no longer exists and as a result that the CCMA has no jurisdiction in the matter.

To justify dismissal, an employer must be able to prove that the work relationship between him/her and an employee has become unbearable.

The Code of Good Conduct contained in Schedule 8 of the Labour Relations Act (Act 66 of 1995) imposes a duty on employers to prove that an employee’s misconduct was of such a serious nature that the work relationship between the employer and employee has broken down irreparably.

This will, for instance, be the case where it can be proved that the employee has acted in a dishonest way and that the relationship of trust between the employee and employer has broken down irreparably. It is, however, important to bear in mind that even if the relationship of trust between the mentioned parties has been damaged, it does not necessarily mean that the relationship is irreparable.

It is furthermore also important to bear in mind that it is a well-known and accepted principle in South African labour law that employers have the right to expect employees in their service to act honestly and in the best interests of the employer at all times.

The following questions have to be answered when determining whether an employee’s misconduct was of such a nature that dismissal will be the only suitable sanction:

• Has the relationship of trust or the work relationship really been broken?
• Did the employee have a position in which trust is an important factor?
• Was there another remedy the employer could have used without dismissing the employee?
• Did the employer previously dismiss all other employees who committed the same misconduct?
• Did the employee try to conceal his/her dishonesty or did he/she immediately admit that his/her actions were wrong and show remorse?

Dishonesty is not the only misconduct that can break a relationship of trust; there are many other complaints that could also lead to an intolerable work relationship. Should an employer, for example, be able to prove that an employee was guilty of sexually harassing a colleague, the employer will also be able to prove that it would be impossible for the employee to continue working in the company of other employees in future (depending on the degree and seriousness of the harassment). However, should the employer, prior to taking disciplinary action against the accused, still have allowed the employee to work in the company of other employees, including the harassed employee, for a reasonable period, it will be much more difficult for the employer to prove that the accused cannot in future still work in the company of the other employees and that there isn’t a possibility that the accused’s actions can be stopped by a final warning, therefore rendering dismissal unnecessary.

An employer who feels that an employee’s actions were so serious that they preclude a future work relationship will therefore have to put his/her anger and emotions aside for the time being and bring objective proof that a work relationship with the accused would be intolerable and that dismissal is therefore justified.

By Rizelle Botha

In National Union of Metalworkers of South-Africa o.b.o. Johnson/Trident Steel Ltd (2013) 22 MEIBC 8.11.3 the following facts were present:

An employee was dismissed after he had admitted guilt on a charge of being under the influence of alcohol at work or during working hours and after he had undergone a breathalyser test. The employer had a zero-tolerance policy regarding this type of offence for safety reasons and all employees had been informed of it.

The commissioner in the matter ruled that if an employer wants to rely on a breathalyser test, he must present other, substantiating evidence as well. The evidence must, among other things, show that the test was carried out in the approved manner and that the result of the test was correct. The employer can also call witnesses to testify that they were present when the test was being carried out.

In the case in question, the employee admitted that he had been drinking, the employer had carried out a valid and proper test and other employees had been dismissed for similar offences in the past.

The commissioner subsequently ruled that the employee’s dismissal had been fair.

Question:
I work in a bookshop in a busy shopping centre. I am expected to be on my feet the entire day to assist clients who need help. I am pregnant and experience problems as a result. My manager disciplined me because my appearance is not conducive to the image of the business and I was dismissed. Could the fact that I am pregnant be a disadvantage?

Answer:
Section 187 of the Labour Relations Act lists a few cases where an employee may under no circumstances be dismissed. If an employee is dismissed because of any of the listed reasons it automatically is an unfair dismissal. This means that the employer will not have any defence or excuse and that the employee has to be reappointed, or should the employee prefer, be compensated.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:

When a dispute arises over the fairness of a dismissal such a case should be referred to the CCMA or relevant bargaining council within 30 days after the employer has made the final decision to dismiss the employer.
Unfair labour practice should be referred to the CCMA or relevant bargaining council within 90 days after the employee became aware of the unfair labour practice. The procedure is dealt with by Section 191 of the Labour Relations Act.
If such a matter is not referred within the determined time, an application for condonation may be made. According to Rule 9(3) of the Rules of the CCMA the following has to be included in such an application:
• How much time has lapsed.
• The reason why the application is late.
• The merit of the case.
• Any other relevant factors or parties that may be influenced.
A CCMA commissioner will then decide whether the case will be accepted or not.
Solidarity members should contact the trade union as quickly as possible after the dismissal or unfair dismissal case, so that the trade union may discuss the case and provide the member with the necessary forms.
For any further enquiries with regard to the time in which cases have to be reported, please phone Solidarity’s legal experts on 0861 25 24 23.

Question:

I have been working as a receptionist from 1 July 2005. I was appointed as a relief worker, as the employer’s wife was absent due to illness. On 1 February 2006 I went on maternity leave. The employer now wishes to terminate my services as his wife has returned to work and is able to continue with her duties. Are they acting fairly towards me and what is owed to me?

Answer:

The details of the enquiry are vague. I assume that there is no written service contract between the employer and the employee and that the general labour legislations principles apply.

The position of the employee and employer is as follows:

1. She is not retrenched, as her services are terminated in terms of an agreement and not due to operational requirements.
2. She does not get paid maternity leave.
3. The employer may terminate her services without a notice period, as she is with unpaid maternity leave on the one hand and because the other receptionist has returned (as agreed) on the other hand.
4. She is only entitled to remuneration, accrued leave or overtime as agreed on.

Question:

I have won my arbitration hearing at the CCMA and the commissioner found that I had been unfairly dismissed.

My employer has now indicated that he wishes to review the arbitration order. On which ground could the employer have the order reviewed in the Labour Court? 

Answer:

Any party to a dispute who is dissatisfied with an arbitration order, may have such order reviewed. Revision however is not an appeal.

An arbitration order could in terms of Section 145(2) of the Labour Relations Act be reviewed in the following instances:

• When the commissioner is guilty of misconduct;
• Is guilty of gross negligence irregularities during the arbitration;
• Exceeded his authority; or 
• When the award has been obtained in a wrongful manner.

In case of a revision application to the Labour Court the applicant should bring the Commissioner’s “misconduct” to the attention of the CCMA, and the merit of the dispute plays a negligible or no role.

“Misconduct” of the Commissioner refers to the fact that the Commissioner has not acted correctly, in the manner expected from him, during the arbitration. In other words, the Commissioner’s order is not reviewed, but rather the manner in which such a finding was made.                            

Grounds for review could include that the Commissioner has refused a party to call witnesses, cross-examine witnesses, misconstrued evidence and much more.

The powers of CCMA-commissioners are explained in Section 142 of the Labour Relations Act and should the Commissioner not adhere to said powers, such behaviour could also be grounds for a review.

Of vital importance is the fact that the Commissioner’s analysis of the evidence brought before him has led him to a reasonable and justified finding.

Whether the final order is correct, is not relevant, as long as the Commissioner’s evaluation of the evidence is without error. The evaluation could lead to an incorrect ruling, but the order will not be reviewed by the Labour Court. It is important to note that review applications are heard in the Labour Court, which is a higher court.

Legal costs in such a court are substantially higher and applications should be evaluated with circumspection.

Question

I am a manager at my work and my empoyer indirectly obliges me to dismiss employees appointed under me for trivialities. Can they require me to do so and what would happen if I was dismissed for refusing?

Answer

This dispute shows many similarities with the case of Harding v Petzetakis Africa (Pty) Ltd (2012) 33 ILJ 876 (LC). In this case Ms Harding alleged that she had been automatically and unfairly dismissed because she had refused to dismiss certain subordinates when instructed to do so by the chief executive officer. The employer alleged that she had not been dismissed for the reasons supplied in her version, but because she had been incapable of doing her job.

However, the court accepted  Harding’s account and confirmed that she, on consideration of probabilities, could prove that the employer did dismiss her based on her refusal. She also proved that the employer drew the line immediately after she objected when the chief executive officer gave her the instruction and not, as alledged by the employer, after she refused to carry out the instruction. The employer’s argument that Harding was a senior manager and therefore had to carry out all instructions wal also invalid since the chief executive officer’s instruction was illegal. The court awarded 13 months’ salary  to Harding.

Therefore, it is clear that your employer cannot force you to dismiss someone. Dismissal based on this kind of refusal is likely to be unfair automatically. We would therefore advise you to contact Solidarity as soon as possible if you find yourself in this situation.

By Rizelle Botha

The suspension of an employee can be considered to be unfair in the following circumstances:

• When the suspension is merely a form of punishment and the employer never intended to hold a disciplinary hearing. This rule is confirmed in  Sajid v Mohamed NO & Others (2000) 21 ILJ 1204 (LC).
• When the employee is suspended for an unreasonable length of time, especially if periods of suspension are regulated and limited by the employer’s internal procedures.
• When the employer does not have a prima facie case (that is, a case that appears to be based on sufficient evidence) against the employee.
• When the employer does not follow his own disciplinary guidelines.
• When the employer does not afford the employee an opportunity to provide reasons why he or she should not be suspended. These reasons need not be presented formally and in writing – they may also be given verbally.

If an employee is unfairly suspended, he or she may file a complaint of unfair labour practice against the employer under section 186 (2)(b) of the Labour Relations Act (No. 66 of 1995). If you are a member of Solidarity and you are of the opinion that you have been suspended unfairly, contact us as soon as possible for prompt and thorough legal advice and assistance.

Question:

What are unfair labour practices and automatic unfair dismissal?  

Answer:

Unfair labour practices are dealt with by Section 186(2) of the Labour Relations Act (Act 66 if 1995). The legislation describes it as any unfair act or omission by an employer and includes the following:

• <!–[if !supportLists]–> Unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee, or relating to the provision of benefits to an employee;
• Unfair suspension of an employee or any other unfair disciplinary action in respect of an employee; and
• A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.

Automatic unfair dismissal is dealt with by Section 187 of the Labour Relations Act. A dismissal is automatically unfair if the reason for the dismissal is any of the following:

•  That the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action;
• The employee exercised his/her rights or took part in any proceeding as described in the Labour Relations Act;
• The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy; and
• Race, gender, disability, religion, belief, political opinion, culture, language, marital status, sexual orientation or family responsibility.

Question:

I was employed at a tertiary institution with a fixed term contract for five years.

My contract has been terminated by the institution without warning, half a year before it would have lapsed.

It was alleged that my contract has been terminated due to operational requirements.

Answer:

The member’s case concerns breach of contract by the employer.

When the member entered into the service contract with the employer, the employer created an expectation with the member that the contract would be valid for a term of five years. 

A recent ruling (Buthelezi vs. Municipal Demarcation Board in die Labour Court) made it clear that in the case of a fixed term contract an employer is bound to the contract for the full term of such a contract. Should the employer cancel the service contract, it would mean that the employee has been procedurally and substantively unfairly dismissed.

Parties undertake to remain bound to a fixed term contract for the full term, which is not the case with service contracts with an indefinite term.

It is clear that when parties enter into a fixed term service contract both parties plan their financial obligations with the understanding that the contract will be honoured.

The argument that the employer may have or submit certain reasons to terminate the fixed term service contract is not a valid argument.

The fact remains that when the employer can no longer afford the employee for whatever reason he still may not unilaterally cancel the service contract.

The employer should have entered into a service agreement with the employee for an indefinite term.                           

Remedies:

The employee could refer the case to the relevant forum (CCMA or Bargaining Council) as an unfair dismissal.

Remuneration could be demanded for the outstanding part of the fixed term service contract.

By Johan Roos

Answer

In terms of section 31 of the Basic Conditions of Employment Act, an employer must keep records that contain the following information:

• an employee’s name and occupation;
• the time worked by each employee (the duration of employment);
• remuneration paid to the employee;
• the employee’s date of birth if he or she is younger than 18 years; and
• any other prescribed information.

Question:

Can a resignation be withdrawn?

Answer:

As is the case with most labour-law matters, there is no clear yes or no answer. In the case of Lottering & others vs Stellenbosch Municipality (2010) 31 ILJ 2923 (AH) the employees resigned without giving the required notice as stipulated in their contracts. In the Labour Court the employees argued, among other things, that their resignation had no legal force because of their neglect to comply with the period of notice as set out in the Basic Conditions of Service Act (No. 75 of 1997) and their service contracts.

The Labour Court found that a clear resignation cannot be withdrawn without the employer’s consent. An explicit acceptance by the employer is not necessary either. It was further found that a service contract ends when the period of notice expires and not when notice is given. The court confirmed that should an employee’s resignation not comply with the stipulated period of notice, this does not render the resignation invalid – it implies breach of contract and it is the employer who has an option to accept the resignation or not.

The lesson to be learned from this is not to resign on the spur of the moment. A decision to resign must be a well-considered one.

By Paul Mardon

Question

My employer has a contract with a transport company to transport employees to and from work by bus for free. Should the bus, for example, be involved in an accident while transporting employees to work, would the injuries they sustain during the accident be regarded as injuries on duty ?

Answer

Section 22(1) of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) states that if an employee has an accident resulting in his disablement or death, then the employee or the dependents of the employee will, subject to the provisions of the Act, be entitled to the benefits provided for and prescribed in the Act, in other words, such injury or death will be regarded as an occupational injury.

Section 22(5) of the Act further stipulates that the transport of an employee free of charge to or from his workplace for the purposes of his employment will be deemed to take place in the course of the employee’s employment, if the vehicle specially provided by his employer for the purpose of such transport is driven by the employer himself or one of his employees.

The Act defines ‘accident’ as an accident arising out of and in the course of an employee’s employment and resulting in a personal injury or a disease or the death of the employee.

In general, transport to and from work does not qualify as part of an employee’s employment and an employee’s injury or death during such transport will not be regarded as an occupational injury. Section 22(5) does provide an exception to this general principle, but two conditions must be met, namely:
• the transport must be provided to the employee by the employee free of charge; and
• the vehicle specifically provided for that purpose must be driven by the employer himself or one of his employees.

Therefore, if an employer has a contract with a transport company to convey his employees to and from the workplace, injuries that occur during such transportation will not be regarded as occupational injuries, even if the transport is provided to the employees free of charge, as the vehicle is driven by a driver of the transport company and not by the employer himself or one of his employees specifically appointed for that purpose.

 

By Coenie Rheeders

Question
What must one do to claim outstanding statutory dues?

Reply
The new Christmas season is on its way and we are receiving many enquiries about underpaid salaries, as well as enquiries about bonuses and 13th cheques.  “Statutory dues” is the term used for monies that must be paid to employees and include salaries, bonuses, 13th cheques, overtime and certain allowances.

In cases where there are outstanding dues and the employee has already been dismissed, the claim for the outstanding statutory dues can be consolidated by means of an unfair dismissal dispute that is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or another bargaining council. In other words, in such a case a single dispute can be referred to them.

In cases where the employee is still employed by the employer, however, a different procedure must be followed. In cases like these the CCMA does not have jurisdiction in the matter.

1. The first step that has to be followed is that the employer should lodge an internal grievance or complaint about the outstanding dues at the pay office or human resources (HR).
2. If the employer fails to pay the outstanding amount/amounts and is registered with a bargaining council, the employee should approach the specific bargaining council to lodge a complaint. Alternatively, the employee should approach the Department of Labour if the employer is not registered with a bargaining council. .
3. If the employee’s basic (gross) salary is over the limit determined in terms of section 6(3) of the Basic Conditions of Service (the sum is R183 008,00 a year or R15 250,67 a month at present), the Department of Labour will not deal with the case and the case must then be referred to the Labour Court.  Please note that the employee still has to go to the Department of Labour and obtain proof that the Department of Labour will not deal with the case.
4. If the case is referred to the Labour Court, an application must be brought
• in terms of sections 77 (1) and (3) of the Basic Conditions of Service Act if the outstanding dues must be paid in terms of a contract of service;
• or  in terms of section 158 of the Labour Relations Act if the outstanding dues must be paid in terms of an agreement.

The employee should note that it might take a long time before the process of collecting outstanding statutory dues is concluded. It could also present difficulties if there is no concrete proof that the dues are outstanding. It is recommended that the proof be in writing (overtime sheets, a contract of service or a written agreement) as it is difficult and sometimes impossible to prove a case without documentation.

The motto  “ALWAYS GET IT IN WRITING” remains valid when claims for outstanding statutory dues are submitted.

 

Disputes regarding refusal to carry out reasonable instructions are fairly common. In most of these disputes it is found that dismissal was fair. However, what is the position when an employee who refused to carry out an unlawful instruction is dismissed?

The Labour Court recently heard such a case. The employee concerned was a managing director who refused to summarily dismiss two subordinates at the instruction of the chief executive officer (CEO). She was prepared to hold a disciplinary hearing for the two employees, but the CEO insisted on immediate dismissal. When the employees still refused to dismiss them, she was dismissed.

The court came to the conclusion that the instruction that had been given to the employee to dismiss the two employees without a disciplinary hearing was unlawful, as the employees were entitled to a disciplinary hearing before dismissal could be procedurally fair. Employers cannot expect employees to perform an unlawful action. This prohibition is set out in section 5(2)(c)(iv) of the Labour Relations Act, according to which an employee or jobseeker may not be prejudiced for failure or refusal to do something that an employer may not lawfully permit or require an employee to do.

If an employer dismisses an employee on the basis of a reason set out in section 5, such dismissal is deemed automatically unfair in terms of section 187(1). In the case described above, the court ruled that the dismissal had been automatically unfair and awarded the employee compensation.

Unlawful or unreasonable instructions can take on various forms and each case will be judged on merit. Instructions to commit an offence, non-compliance with legislation and instructions to work in an unsafe or hazardous workplace or to carry out an unsafe or hazardous task are just a few examples of unlawful or unreasonable instructions. These cases will not be strictly regarded as unlawful or unreasonable instructions by the courts. After all, police officials cannot refuse to work if they are pelted with stones during unrests. A miner can refuse to work underground in an unsafe area, but the situation changes if that miner is part of a proto team who have to go and rescue miners who are trapped underground. An instruction to assault a colleague or to steal something is clearly not a lawful instruction and to assert that you carried out an instruction will not count as a defence in a criminal court.

An instruction to perform tasks that do not form part of an employee’s job description is not necessarily unreasonable. The court has previously ruled that the instruction to employees to operate two machines instead of one was not an unreasonable instruction. It is therefore crucial to not refuse to carry out an instruction right away and to get advice immediately, or to carry out the instruction, but to get advice and lodge a grievance.

The following factors must be taken into account to determine if an instruction is unlawful or unreasonable:
- Is the action following the instruction prohibited by legislation or common law?
- Is the action following the instruction regarded as being against good morals or against the public interest?
- Is the instruction issued in an emergency?
- Is the action following the instruction regarded as part of your job functions?
- If the action following the instruction is not part of your normal job functions, how far removed is it from your normal functions?
- Does the instruction promote the employer’s business without placing an undue burden on the employee?

An objective test must be applied to determine whether or not an instruction is unlawful or unreasonable.

Solidarity can offer its members advice on what to do in a specific situation. The golden rule is to contact your trade union for advice before refusing to carry out an instruction.

By Leigh McMaster

Question:

Should employers be held accountable for health and safety at their operations?

Answer:

Yes, all employers should be held accountable for health and safety at their operations. Ensuring healthy and safe workplaces is part of the mining industry’s social licence to mine.

Take for example the compensation battle that looms in the gold mining industry. The Mankayi v. AngloGoldAshanti case, where a landmark ruling was given in 2011, has set the precedent for a possible class action lawsuit against some 30 gold mining companies. Harmful exposure to silica dust in the South African gold mining industry has been a major risk for employees over decades of mining. The prevalence of silicosis among former and current mineworkers has been very difficult to establish, however. A 2009 report from the Health Systems Trust which evaluated various research reports suggested that the prevalence of silicosis among former employees may be between 20% and 30%. The potential number of claimants may therefore be substantial, taking into account the employment figures of the gold industry over the last eight decades.

Richard Spoor, a human rights activist and attorney, has moved to file a class action suit against more than 30 gold companies on behalf of 17 000 former miners who say they contracted silicosis, a debilitating lung disease, due to negligence in health and safety. The companies include third-largest global bullion producer AngloGold Ashanti, fourth-largest bullion producer Gold Fields and Harmony Gold. Spoor filed the application to bring a class action with the High Court in December 2012 and expects the matter to be heard in May 2013. Due to various factors it is still unclear what the extent of the claims for damages will be, but the claims will undoubtedly have a significant impact on the financial sustainability of the industry.

Solidarity is of the opinion that former and current employees suffering from occupational lung diseases should be compensated at reasonable levels, which is not the current status quo as a result of the discrepancies in the South African legislation dealing with compensation. The development of a compensation trust fund could be a more sustainable model for delivering reasonable compensation to disabled employees while at the same time ensuring sustainable employment for the current workforce.

Question:

May an employer terminate a valid, signed contract of employment if the employee has not started working there yet?

Answer:

An employee is protected by labour legislation and case law from the moment a contract of employment has been signed, even if he or she has not yet physically started working for the employer.

In the case Wyeth SA (Pty) Ltd v Manqele, Mr Manqele had been offered a post as sales representative. The parties signed a contract of employment stipulating that Mr Manquele’s employment would commence on 1 April. Before Manquele started working there the employer informed him that they were no longer willing to employ him. Manquele referred the matter to the Commission for Conciliation, Mediation and Arbitration and the arbitrator ruled that he had become an employee the moment he accepted the employer’s offer of employment.

The employer took the arbitrator’s decision to the Labour Court on review. In the hearing of the review application the Labour Court confirmed that Manquele was a party to a valid contract of employment and therefore was an employee for purposes of the Labour Relations Act.

The employer then referred the matter to the Court of Appeal. This court confirmed that Manqele became an employee from the moment he had been contracted.

Therefore, an employer may not simply terminate a valid contract of employment, even if the employee has not yet physically started working for the employer. This rule also applies to verbal agreements.

Question:
My employer is making my working my conditions unbearable. She is constantly finding fault with everything and shouts at me. This cannot carry on and I want to resign. Can I resign? Can I claim constructive dismissal because she is the reason I want to resign?

Answer:
Definition of constructive dismissal

Constructive dismissal is “a situation in the workplace, which has been created exclusively by the employer, and which renders the continuation of the employment relationship intolerable for the employee – to such an extent that the employee has no other option available but to resign, with or without notice, or to simply leave the employment of the employer.”

In other words, the employee is compelled to resign due to unfair pressure, unreasonable instructions or unbearable behaviour caused or created by the employer (thus, “constructive dismissal”).

Question:

I have a problem with one of my colleagues. Each time I go out of the office or take a day’s leave, she criticises my work. Then she goes to my manager. My manager doesn’t do anything about it, because she is afraid of the colleague. I feel that she has discriminated against me as she had a problem with me right from the start.

Answer:

The problem described here cannot necessarily be categorized as discrimination. The worker who is aggrieved is entitled to submit a grievance against this colleague in which he says that she falsely accused him of things that he has not done. The employer will then be obliged to investigate the matter and solve the problem.

Should the employer not give attention to his grievance, it could be said that his employer discriminates against him, as everyone who has grievances should be treated equally.

The employee also has to keep in mind that his colleague is entitled to complain to the manager if things do not go smoothly in the workplace, provided her accusations are not false. Should she make false accusations, it could tantamount to libel or crimen injuria and he could take civil action against her.

The trade union can only act when a labour dispute arises between the employee and employer.

Question:
Are there various forms of sexual harassment that need to be considered?

Reply:
Sexual harassment can include unsolicited verbal and non-verbal behaviour but is not limited to it.

The following are examples of sexual harassment:
• Unsolicited physical contact of a sexual nature, which can range from indecent assaault, rape, unsolicited physical contact to a body search by a person of the opposite sex.
• Verbal forms of sexual harassment can include unsolicited sexual innuendos, suggestions, questions, jokes or insults of a sexual nature, and remarks about a person’s body in their presence and made directly to them. Even a wolf whiste in the direction of a person or persons can in certain instances be regarded as harassment.
• Non-verbal forms of sexual harassment can include behaviour such as unsolicited signs made to the person, as well as indecent exposure. Showing pornography or even an object of a sexual nature to another person can also be regarded as sexual harassment.
• Quid pro quo harassment takes place when an employer, manager, supervisor or fellow employee tries to control processes such as appointments, promotions, training, disciplinary procedures, discharging an employee or salary raises in exchange for sexual favours.
• Sexual favouritism is when one employee is promoted or gets a raise as a result of a sexual relationship but another employee is passed over because he or she refuses to participate in such a relationship.

Question:

I would like to know when I could institute a case of sexual harassment against someone. A colleague rubs his body against mine. On more than one occasion I have subtly tried to tell him that I don’t like what he is doing. Recently he made a joke in the office and said that I am his secret lover. I have told him that he may never do it again and that he has to stay away from me. Now he is trying to make peace by sending personal gifts to me. I return them, but he doesn’t stop. What can I do to put a stop to it?

Answer:

According to the code of good practice for the handling of sexual harassment cases sexual harassment is described as any undesirable act of a sexual nature. One should however distinguish between sexual attention and sexual harassment.

Sexual attention becomes sexual harassment when:

• the behaviour continues (although a non-recurrent incident could also be sexual harassment);
• the aggrieved person has clearly put it to the person that his behaviour is unacceptable and offensive and that the person should stop this behaviour; and
• the transgressor knows that his behaviour has been unacceptable and offensive.

Sexual harassment indeed is a form of unfair discrimination based on gender or sexual orientation. Section 6 of the Employment Equity Act determines that no one may directly or indirectly discriminate unfairly against a person on the basis of among other his/her gender or sexual orientation.

When a person is harassed, the person could decide to address it formally or informally, depending on how serious the harassment is.

The aggrieved person could solve the matter informally by confronting the person with his undesirable behaviour and request him to stop his behaviour. It is expedient to have a talk to the harasser in the presence of a trade union representative.  Such a person could later be called as a witness in the case. If the behaviour continues, the aggrieved could talk to the harasser’s direct manager. The person’s direct manager could then talk to the harasser.

If the informal procedure was unsuccessful or if the harassment was of a very serious nature, the aggrieved person could decide to immediately start the formal process. This could be done by following the employer’s grievance procedure and then insist that the employer should investigate the complaints and take disciplinary action against the harasser. Should the employer refuse to take action or should the grievance not be solved to the satisfaction of the aggrieved person, a dispute for unfair discrimination could be referred to the CCMA or appropriate Bargaining Council to obtain a certificate. After the appropriate forum has issued a certificate, the dispute could be referred to the Labour Court to settle the dispute.

Before one can answer your question about sexual harassment, one first has to establish what sexual harassment is.

Sexual harassment entails unsolicited actions of a sexual nature, which have to be distinguished from sexual attention agreed to by both parties. Even if there used to be a relationship between employees, but one of the parties is no longer happy with the attention he or she is receiving, the attention can turn into harassment. As soon as one person says “no” or feels uncomfortable with the employee’s conduct or advances, it is sexual harassment.

Sexual attention becomes harassment in the following cases:

• If the actions or attention continues after the person to whom the attention is directed has objected to it.
• If the person to whom the attention is directed immediately objects and makes it clear that the attention is undesirable.

Before taking a case of sexual harassment any further, it is important to exhaust all internal remedies. The grievance procedure is regarded as an internal remedy and must be followed. It is also important to stress that, if you make allegations about victimisation or discrimination against a person, you must be able to prove these allegations substantively. The person against whom the grievance was lodged could take civil action against you if your allegations were false.

If your workplace does not have a grievance procedure, you must write letters to the employer. These must then be escalated systematically to the highest level in the company. It then serves the same purpose as the grievance procedure.

When the internal steps have been exhausted, external remedies can be sought.

Question 4: What if my leave overlaps with a public holiday?

Answer: If leave and a public holiday overlaps the day will not be accounted for as a day’s leave.

Question: How much should I be paid for working on a public holiday?

Answer: An employee who works on a public holiday must receive normal payment for the day. However, if the employee does not normally work on public holidays, he must be paid double the normal rate.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
My employer has asked me to work on a public holiday. Am I obliged to work and what payment does the law prescribe for such work?

Answer:
No employer may force an employee to work on a public holiday, unless a prior agreement between the employer and the employee contains a different stipulation. An employee who does not work on a public holiday must receive his/her normal salary for the day. If the employee does work on a public holiday, he/she must receive double his/her normal payment.
How about payment on Sundays?
In terms of Section 16 of the Basic Conditions of Employment Act, an employee must be paid double his/her normal salary for working on a Sunday. However, if the employee does normally work on a Sunday, he/she must be paid one and a half times his/her normal salary. The employer and employee may, however, reach an agreement that the employee will get extra leave instead of extra payment.

By Phil Davel

Reply:

An employee who simply stays away from work can be charged with misconduct, more specifically for being absent without leave or even for having absconded.

The consequence could be a disciplinary hearing which would in all probability result in a sanction. The sanction depends on the employer’s disciplinary code and could vary between a warning (verbal or written), a final written warning, suspension, demotion, et cetera.  Depending on whether procedure was correct, the merits of the case, extenuating and aggravating circumstances (for example, the person has already received a final, written warning for the same offence), the hearing may even result in discharge. However, the employer may not withhold the person’s salary.

Our advice is that an employee should preferably obtain permission beforehand and put in leave for the specific days.

Answer: These forums were established in terms of the Labour Relations Act (Act 66 of 1995). These forums have the powers to hear individual disputes, such as cases relating to unfair dismissal. Forums such as the Commission for Conciliation, Mediation and Arbitration (CCMA) can also issue authorisation certificates for strikes. The labour court judge can only rule in certain disputes and the labour court’s jurisdiction is to hear applications for review, handle discrimination cases, and issue interdicts. For example, if the CCMA issues a strike certificate and the employer believes that it is an essential service and a strike should therefore not take place, the employer can submit an application to the labour court for an interdict. Bargaining councils basically have the same jurisdiction as the CCMA and certain industries establish their own bargaining council with which employers must register, where wage negotiations must take place, and where disputes regarding unfair dismissal and labour practices can be referred.

<P>
By Johan Roos

Johan Roos concludes his series on unfair labour practice. Click here to listen to previous inserts on this topic on Solidarity Radio.

Re-employment
A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement amounts to unfair labour practice in terms of section 186(c) of the Labour Relations Act.

An employee must also be re-employed if he was dismissed due to operational requirements and a collective agreement, contract of employment or any other written agreement determines that he will be re-employed when conditions at the company improve. Failure by the employer to comply with the provisions of such an agreement will amount to unfair labour practice.

Go to www.solidaritylegalservices.co.za for more answers to general questions on legal matters.

Question:

What are unfair labour practices and automatic unfair dismissal?  

Answer:

Unfair labour practices are dealt with by Section 186(2) of the Labour Relations Act (Act 66 if 1995). The legislation describes it as any unfair act or omission by an employer and includes the following:

• <!–[if !supportLists]–> Unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee, or relating to the provision of benefits to an employee;
• Unfair suspension of an employee or any other unfair disciplinary action in respect of an employee; and
• A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.

Automatic unfair dismissal is dealt with by Section 187 of the Labour Relations Act. A dismissal is automatically unfair if the reason for the dismissal is any of the following:

•  That the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action;
• The employee exercised his/her rights or took part in any proceeding as described in the Labour Relations Act;
• The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy; and
• Race, gender, disability, religion, belief, political opinion, culture, language, marital status, sexual orientation or family responsibility.

Answer: The regulations of the Basic Conditions of Employment Act will apply. The Act states that for every five hours worked, an employee must receive a break of at least one hour.

Question: When is a person unlawfully absent from work?

Answer: An employee has a fundamental duty towards the employer to provide services, and the employer has the right to expect it. A basic element of these duties is that an employee can be expected to be at work during working hours, unless the employee has a valid reason for his/her absence.

Question:
How much time do I have to institute legal in the event of unfair labour practice?

Answer:
Cases of unfair labour practice must be referred to the CCMA or relevant bargaining council within 90 of the employee becoming aware of the unfair labour practice. The procedure is regulated by Section 191 of the Labour Relations Act.

Question:
What happens if I cannot refer the case within this period?

Answer:
If such a matter cannot be referred within the given timeframe, you can still apply for a condonation. In terms of Rule 0(3) of the CCMA’s rules, the following must be included in such an application:

• How much time has elapsed since the incident;
• The reason for the late submission of the application;
• The merit of the case; and
• Any other relevant factors or parties that might be influenced.

A commissioner of the CCMA will then decide whether the case will be accepted by the CCMA.

Solidarity members must preferably contact the trade union as soon as possible after the dismissal or the commencement of an unfair labour practice in order to discuss the matter and for the member to get the necessary forms.

Question: I would like to know if my employer can refuse to allow me to take smoke breaks. Isn’t he infringing on my rights? We have always taken two smoke breaks of 15 minutes each per day, but now our manager is refusing, saying that we cannot smoke on the balcony. What does the law say about this?

Answer: Permitting smoke breaks, just as tea and coffee breaks, is not currently required, prohibited or regulated by labour legislation. Although each employer shouldhave a written smoking policy in the workplace, it is subject to the discretion of the employer and it is a privilege granted to employees. It is, however, important for employers to realise that permitting smoke breaks should be evaluated in light of the working conditions and the morale and needs of employees, but smoke breaks remain a privilege and not something to which an employee is entitled. An employer can even completely prohibit smoke breaks, even if the nature of the workplace does not require it.

Question:

I am a flight attendant at a local airline. My senior gave me a form with the week’s flight schedule and asked me to check all the catering supplies for each flight. I politely pointed out to her that it is not in my job description and that I had been appointed as a flight attendant. I cannot remember the checking of supplies or administrative task being part of my duties. My senior referred me to some memorandum, which states that I have to perform such tasks and that I will face disciplinary action if I refuse. I am not aware of such a memorandum. What should I do now?

Answer:

Members often ask if their employer can force them to perform duties that are not part of their task description. We refer to such requirements as ad hoc requirements. Loosely translated, ad hoc means “for a specific purpose or circumstances”.

The first step an employee should take in this case is to refer to the service contract. Most service contracts contain a clause that states that an employee agrees to perform any additional duties, as required by the employer.

Phil Davel

Question:

I expect my employer to grant me family responsibility leave for this because my child is ill and I have to take him.

Answer:

The question is whether, in accordance with the Basic Conditions of Employment Act (Act 75 of 1997), this visit to the dentist during working hours is a case described in Section 27(2)(b):

(2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days’ paid leave, which the employee is entitled to take—

(a) when the employee’s child is born;
(b) when the employee’s child is sick; or
(c) in the event of the death of—

((i) the employee’s spouse or life partner; or
((ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

(5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (2 for which the leave as required.

Although the Act does not define ‘ill’, the Oxford dictionary defines ‘illness’ as ‘a disease or period of sickness’ and ‘sick’ as ‘not in full health; unwell’.

The member believes that she is entitled to family responsibility leave in this case. However, the question is, if her employer denied the leave, whether it would be unreasonable and unfair. This is where Section 27(5) is important. So, if the doctor/dentist can provide a letter or certificate to confirm an essential or urgent procedure and the employee hands in this document, the question is whether the employer can, in fairness, deny the leave.

If the visit to the dentist is not urgent, one can argue that the leave concerned falls outside the allowance of the Act and that the employer is entitled to prevent employees from abusing the terms of the Act. Therefore, it is a matter of restrictive interpretation where we are dealing with a limitation of the meaning of general words in order to give effect to the actual intention of the lawgiver. Consequently, the word ‘ill’ has a narrower meaning and this is possibly the appropriate interpretation in this case. .

In summary, one can argue that in the case of a dentist or even specialist medical practitioner such as an optometrist, the urgency level of a visit may vary: either it is a general, regular check-up, or the visit is essential and urgent, such as an abscess or a tooth being knocked out on the playground. In such a case, a medical certificate should be sufficient proof.

Whatever the situation, the discretion rests with the employer to approve or deny a request for this special type of leave. If the employer is willing and able to grant normal leave to give the parent the opportunity to take her child to the dentist, he should still be within the boundaries of reason instead of completely refusing to allow the employee to take care of her child’s wellbeing.

For more information regarding family responsibility leave, call Solidarity’s legal experts at the service centre on 0861 25 24 23.

Question:

My employer has decided to relocate the business to Johannesburg. The alternative offered to me was that I could resign if I couldn’t relocate. On my salary I cannot afford the additional expense and I don’t have a drivers’ licence.

Answer:

The relocation of offices from Pretoria to Johannesburg is a management prerogative. As positions have not been done away with, the employer does not plan staff retrenchment because of operational reasons.

The provisions of Section 189 with regard to consultation therefore do not apply. It is not the employer’s intention to dismiss the employee. Should an employee not accept the relocation, the result could be that the employer unilaterally changes conditions of employment. In that case the employer will have to start a consultation process to prevent retrenchment. If there isn’t a workable alternative, the employer could dismiss the employee due to operational reasons. Whether the employee would be entitled to a retrenchment package, will depend on the circumstances, in other words whether the change has been a fair alternative for dismissal.

Question:

My employer has decided to appoint his son as a director. Now the son dismisses all my proposals. He has also changed the formulas that I have worked on, after which I complained. Even though my salary and position have remained unchanged, I regard the situation as a demotion and unilateral change of my conditions of employment, because the son took over some of my duties.

Answer:

The member has started a grievance procedure and a meeting was held. It’s his employer’s prerogative to manage his business as he deems fit. The son is the co-owner of the business and therefore the member’s manager. The meeting was held and the employer undertook to allow the member to continue with his previous function, in collaboration with the new director. The member should keep the director informed of events.

Phil Davel
2010-08-11

Question: May an employer force an employee to sleep over for a teambuilding session?

Answer: The employer can definitely expect his/her staff to attend a teambuilding session. This is because attending a teambuilding session could be a direct order and also because it is offered in the interest of operational requirements.

Most employers offer congresses or team building session where attendance is a matter of choice for employees. In this case, employees would not be entitled to payment for overtime if they choose to attend.

If attendance of the teambuilding is compulsory, the issue of overtime payment could arise. Note that overtime is only payable in terms of an agreement. In other words, if the issue of overtime payment, travel allowance, etc. crop up, an agreement must be put in place beforehand.

If the employee is unhappy about the order to attend the teambuilding, he/she can lodge an internal grievance and follow the normal internal procedures. Because an activity such as a teambuilding is normally a once-off event and it is in operational interest, it could be regarded as a fair and legal instruction. Refusing to attend would be to your detriment.

As far as sleeping over is concerned, you cannot necessarily be forced to do so. You can be forced, however, to attend the teambuilding and/or course and to be there when it starts. If the premises where the teambuilding is held are located not too far from your normal place of residence, you could be allowed to sleep at home and return in the morning.

To summarise: The employer can instruct employees to attend the teambuilding session. If it is compulsory and no relevant internal policy or prior agreement is in place, employees can expect to be remunerated for overtime. Attending the teambuilding session does not necessarily require spending the night there.

However, it is important to add that the employer’s requirement to attend the teambuilding should be reasonable and employees’ family responsibilities could be an important factor.

By Johan Roos

Section 186(2)(a) of the Labour Relations Act defines unfair labour practice as unfair conduct by an employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. Click here to read the previous article on unfair labour practice.

Can my employer be forced to promote me? According to the Labour Court, employees are not entitled to promotion, unless there is an agreement or act that determines that an employee must be promoted. In addition, an employee must be promoted if the employer created such an expectation for him or her. In terms of section 186(2)(a) of the Act, employers must act fairly towards employees. Employers must follow all the prescribed procedures when appointing employees and appoint staff according to their operational requirements. This section therefore does not give employees the right to promotion, but the right to fair labour practice.

By Johan Roos

When an employer considers suspending an employee, he must act in accordance with his disciplinary code, otherwise the suspension will be deemed unfair. Suspension will also be unfair if an employee is suspended without pay, or is suspended even though the employer’s disciplinary policy does not make provision for suspension.

Further, an employee’s suspension should not be prolonged unnecessarily and some policies stipulate that a suspension should be reviewed after a certain period. If a suspension is drawn out, it could have a negative psychological impact on the employee and affect his or her reputation and dignity, as a long-term suspension is often confused with dismissal

By Phil Davel

14/04/2011

The courts have defined restraint of trade agreements as a contract in terms of which one party (the employee) agrees with another party (the employer) to restrict his/her freedom to do business with a third party or to work for him or her in future. What it amounts to is that an employee undertakes inter alia not to work for the employer’s competition for a certain period and in a specified area.

Two points should be borne in mind here: Firstly, there are no hard and fast rules when it comes to restraint of trade agreements, and secondly that such agreements are not ruled by labour law but by the law of contracts.

Although parties to a contract are generally deemed bound by it, the courts will not enforce a restraint of trade agreement if it is contravening public policy. It is more than likely to be contravening public policy in the following instances:

1. If the employer does not have a protected interest. A protected interest could include trade secrets, confidential information and client lists. Such information will not be deemed confidential if it is available in the public domain such as, inter alia, the internet, or if commonly applied in practice or in industry.

2. In cases where the scope is too vague, the area too wide, and the term of the restraint of trade agreement is too long. The courts may in some instances enforce the agreement, but limit the scope, area and term thereof.

3. If the restraint of trade agreement is only aimed at preventing sound competition. Should the agreement be enforced in such a case it would be infringing on one’s fundamental right to the freedom of trade, occupation and profession.

The employee will have to prove the above and convince the court that on a preponderance of probabilities the restraint of trade agreement is unfair and unenforceable.

By Johan Roos

Employees have the right to belong to a trade union in terms of section 5 of the Labour Relations Act as well as the Constitution (under freedom of association).

Section 187(1) of the Labour Relations Act determines that a dismissal on the basis of trade union activities is automatically unfair.

Question: When may I appeal against a ruling by a commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA)?

 

Answer: In terms of section 145 of the Labour Relations Act, a party may lodge an application with the Labour Court for leave to appeal on the basis that the commissioner had made a mistake and/or that something was wrong with the ruling (the term “defect” is used in the relevant section of legislation). If a party makes such an allegation, the party must submit an application to the Labour Court within six weeks following the award.

 

The word “defect” means that:

 

• The commissioner committed misconduct in relation to the duties of the commissioner as an arbitrator;
• The commissioner committed a gross irregularity in the conduct of the arbitration proceedings;
• The commissioner exceeded the commissioner’s powers; or
• An award has been improperly obtained.

 

It is also important to add that the review cannot be regarded as an appeal, and therefore the conduct of the commissioner in the hearing is considered, and not the merits of the case.

Question:

What are the implications if I work over lunchtime and go home early?

 

Answer:

The regulations of the Basic Conditions of Employment Act will apply. The Act states that for every five hours worked, an employee must receive a break of at least one hour.

Question: I have been working at a firm for five years and I would like to know to how much leave I am entitled? Doesn’t leave increase the longer you work at a place?

Answer: The member needs to remember that she is entitled to 15 working days’ leave per year, unless stated otherwise in the service contract. The law mentions 21 consecutive days, but of course this implies that weekends are included. As far as the increase of leave in proportion to the number of years of service: there is no such stipulation, unless determined by an employer agreement of policy.

Question 1: When am I entitled to leave?

Answer: If an employee works more than 24 hours per week, he is entitled to 21 consecutive days leave, or one day’s leave for every 17 days worked or one hour for every 17 hours worked.

Question 2: The Law refers to 21 consecutive days. What is meant by this?

Answer: Sometimes there may be confusion over the interpretation of the 21 consecutive days. This actually means that an employee has 15 days’ leave. In other words weekends are included in the 21 days.

Question 3: What if my leave was not granted during my leave cycle?

Answer: Leave must be granted at least six months after the end of the previous cycle.

Question 4: What if my leave overlaps with a public holiday?

Answer: If leave and a public holiday overlaps the day will not be accounted for as a day’s leave.

Question 5: May my employer force me to work during my leave?

Answer: It is important to emphasize that the employee may not be forced to work during his leave period.

Question 6: May my employer pay out my leave instead of me taking it?

Answer: An employer may not pay an employee for his leave instead of granting the employee permission to take the leave.

Question 7: May the employer cancel my leave?

Answer: The employer may cancel leave due to operational requirements.

Question: If you don’t use your leave one year, is it carried over to the next year?

Answer: Most employers have clear policy guidelines regarding the accumulation of leave. The reason is that the employer could run into a financial liquidity crisis if they allowed leave to accumulate indefinitely. If an employee with a large amount of accumulated leave terminated his/her service and the employer had to pay it out within seven days, the funds might not be readily available. Therefore, it is important to note that section 20(4) of the Basic Conditions of Employment Act stipulates specifically that the employer should grant outstanding leave no later than six months following the end of the previous leave cycle (a period of 12 months at the same employer), after which the leave lapses by implication.

Legal Question: Family responsibility leave By Phil Davel, 3 June 2010 Apart from compulsory annual leave, sick leave and maternity leave to which an employee is entitled, the Basic Conditions of Employment Act 75 van 1997, as amended, (BCEA) makes provision in section 27 for compulsory family responsibility leave. Leave that does not have to be granted in terms of the BCEA includes study leave, unpaid leave and special leave, e.g. for sporting activities. The granting of this leave is entirely at the discretion of the employer. If an employee has been working for the same employer for more than four months and at least four weeks per day, he/she is entitled to at least three days of paid family responsibility leave during each leave cycle. A leave cycle spans twelve months from the date on which the employee was employed or twelve months from the end of the previous leave cycle. Family responsibility leave does not apply to workers (permanent or temporary) that work less than: • Four months for the same employer; • Four days a week for the same employer; and • 24 hours a month. However, family responsibility leave is only granted in the following cases: 1. When your child is born or is ill. Note that the BCEA defines a child as a person under the age of 18 years. 2. Upon the death of the employee’s: • Husband/wife or life partner; • Own parent, adoptive parent or grandparent; • Own child, adopted child or grandchild; and • Brother or sister. The BCEA does not make provision for in-laws, and also not for stepsiblings. The nanny of the employee’s child is also not covered. An employer can request reasonable proof before paying the worker. In other words: • Upon the death of the above-mentioned family member, a death certificate and proof that the deceased is a close family member may be required; • Upon the birth of a child, a birth certificate and proof of parenthood may be required; and • When a child is ill, a medical certificate may be required. The BCEA does not define “illness” and only stipulates that reasonable proof may be required. An employee may take family responsibility leave for the entire day or only part of it. Family responsibility leave lapses if it is not taken in the annual leave cycle. Therefore, it cannot be accumulated. When it comes to family responsibility leave, the employer must pay the employee the amount to which the employee would have been entitled if he/she had worked that day, and the payment must be made on the usual payday. If a situation arises during an employee’s annual leave that makes the employee eligible for family responsibility leave, the employer must convert the annual leave to family responsibility leave. Note that a collective agreement could change the number of days and the conditions under which family responsibility leave is granted.

Phil Davel

Question:

I expect my employer to grant me family responsibility leave for this because my child is ill and I have to take him.

Answer:

The question is whether, in accordance with the Basic Conditions of Employment Act (Act 75 of 1997), this visit to the dentist during working hours is a case described in Section 27(2)(b):

(2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days’ paid leave, which the employee is entitled to take—

(a) when the employee’s child is born;
(b) when the employee’s child is sick; or
(c) in the event of the death of—

((i) the employee’s spouse or life partner; or
((ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

(5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (2 for which the leave as required.

Although the Act does not define ‘ill’, the Oxford dictionary defines ‘illness’ as ‘a disease or period of sickness’ and ‘sick’ as ‘not in full health; unwell’.

The member believes that she is entitled to family responsibility leave in this case. However, the question is, if her employer denied the leave, whether it would be unreasonable and unfair. This is where Section 27(5) is important. So, if the doctor/dentist can provide a letter or certificate to confirm an essential or urgent procedure and the employee hands in this document, the question is whether the employer can, in fairness, deny the leave.

If the visit to the dentist is not urgent, one can argue that the leave concerned falls outside the allowance of the Act and that the employer is entitled to prevent employees from abusing the terms of the Act. Therefore, it is a matter of restrictive interpretation where we are dealing with a limitation of the meaning of general words in order to give effect to the actual intention of the lawgiver. Consequently, the word ‘ill’ has a narrower meaning and this is possibly the appropriate interpretation in this case. .

In summary, one can argue that in the case of a dentist or even specialist medical practitioner such as an optometrist, the urgency level of a visit may vary: either it is a general, regular check-up, or the visit is essential and urgent, such as an abscess or a tooth being knocked out on the playground. In such a case, a medical certificate should be sufficient proof.

Whatever the situation, the discretion rests with the employer to approve or deny a request for this special type of leave. If the employer is willing and able to grant normal leave to give the parent the opportunity to take her child to the dentist, he should still be within the boundaries of reason instead of completely refusing to allow the employee to take care of her child’s wellbeing.

For more information regarding family responsibility leave, call Solidarity’s legal experts at the service centre on 0861 25 24 23.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:
If an employee works for more than 24 hours per week, he/she is entitled to 21 days’ continuous leave, or one day for every 17 worked, or one hour for every 17 hours worked.
There is sometimes confusion over the interpretation of the 21 days’ continuous leave. What this means is that an employee has 15 working days’ leave per year. Therefore, it means that weekends are included in the 21 days’ leave.
Leave must be granted for at least six months after the termination of the previous leave cycle. If leave coincides with a public holiday, the day will not be deducted from the member’s leave.
It is also important to emphasise that an employee cannot be forced to work on his/her leave days. The employer can, however, cancel leave for operational reasons. An employer may also not compensate the employee for his/her leave days instead of granting him/her the opportunity to take leave.

Legal question answered by Phil Davel, Solidarity Legal Services, Service Centre

In addition to the mandatory annual leave, sick leave and maternity leave to which an employee is entitled, section 27 the Basic Conditions of Employment Act 75 of 1997, as amended (BCEA), also makes provision for mandatory family responsibility leave.
However, in terms of the BCEA it is not mandatory to grant certain types of leave, including study leave, unpaid leave and special leave, for example for sports activities. Granting this leave is entirely at the discretion of the employer.
If an employee is employed by the same employer for more than four months and at least four days per week, he/she is entitled to at least three days’ paid family responsibility leave during every leave cycle. A leave cycle is 12 months from the date on which the employee took up employment or 12 months from the lapsing of the previous leave cycle.
In other words, family responsibility leave only applies to an employee (permanent or temporary) who has been employed for at least the following periods:
• four months with the employer
• four days per week with the same employer
• 24 hours per month
However, family responsibility leave is only granted in the following cases:
1. When your child is born or is ill. Note that the BCEA does not set an age limit. Therefore, if your child is older than 18 years and he/she becomes ill, you can claim family responsibility leave. A possible requirement, however, is that the child needs to be a dependant.
2. At the death of the employee’s –
• Husband/wife or life partner
• Own parent, adoptive parent or grandparent
• Own child, adopted child or grandchild
• Siblings
The BCEA does not make provision for in-laws or stepsiblings. The caretaker of the employee’s child is also not covered by the law.
An employer may request reasonable evidence in the above cases before granting paid leave. In other words, in case of:
• the death of the above-mentioned family member, a death certificate and proof of the deceased’s immediate family relationship may be requested;
• the birth of a child, a birth certificate and proof of parentage; and
• the illness of a child, a medical certificate. The BCEA does not define “illness” and only states that reasonably proof may be requested.
An employee may take family responsibility leave for the entire day or only a part of the day, and the leave lapses if it is not taken in the annual leave cycle. It can, therefore, not be accumulated.
In case of family responsibility leave, the employer must pay the employee, on the normal payday, the amount to which the employee would have been entitled if he/she had worked that day.
If a situation arises during an employee’s annual leave that entitles him/her to family responsibility leave, the employer must convert the annual leave to family responsibility leave.
*Note that a collective agreement may amend the number of days and the circumstances under which family responsibility leave is granted.

By Phil Davel

Question: If you don’t use your leave one year, is it carried over to the next year?

Answer: Most employers have clear policy guidelines regarding the accumulation of leave. The reason is that the employer could run into a financial liquidity crisis if they allowed leave to accumulate indefinitely. If an employee with a large amount of accumulated leave terminated his/her service and the employer had to pay it out within seven days, the funds might not be readily available. Therefore, it is important to note that section 20(4) of the Basic Conditions of Employment Act stipulates specifically that the employer should grant outstanding leave no later than six months following the end of the previous leave cycle (a period of 12 months at the same employer), after which the leave lapses by implication.

By Phil Davel

Question: I work for a firm that imports and locally distributes farm equipment. Some time ago a was on sick leave for seven weeks, and now my employer is refusing to pay out my last week’s salary. Is the employer obliged to apply ordinary leave if I have not sick leave left?

 

Answer: Section 20(5)(a) of the Basic Conditions of Employment Act stipulates that the employer may not allow an employee to take annual leave during any other leave period to which he/she is entitled. This implies that the law does not allow your employer to grant ordinary leave as a substitute for sick leave.

 

If you both agree to relinquish your right not to use ordinary leave for this purpose, the employer may allow it, but then you cannot invoke the legislation. If you and the employer do not agree, he cannot use your ordinary leave for the period during which you were ill, and therefore you can be placed on unpaid leave.

Apart from compulsory annual leave, sick leave and maternity leave to which an employee is entitled, the Basic Conditions of Employment Act 75 van 1997, as amended, (BCEA) makes provision in section 27 for compulsory family responsibility leave. Leave that does not have to be granted in terms of the BCEA includes study leave, unpaid leave and special leave, e.g. for sporting activities. The granting of this leave is entirely at the discretion of the employer.

 

If an employee has been working for the same employer for more than four months and at least four weeks per day, he/she is entitled to at least three days of paid family responsibility leave during each leave cycle. A leave cycle spans twelve months from the date on which the employee was employed or twelve months from the end of the previous leave cycle. Family responsibility leave does not apply to workers (permanent or temporary) that work less than:

 

• Four months for the same employer;
• Four days a week for the same employer; and
• 24 hours a month.

However, family responsibility leave is only granted in the following cases:

1.     When your child is born or is ill. Note that the BCEA defines a child as a person under the age of 18 years.

2.     Upon the death of the employee’s:

• Husband/wife or life partner;
• Own parent, adoptive parent or grandparent;
• Own child, adopted child or grandchild; and
• Brother or sister.

The BCEA does not make provision for in-laws, and also not for stepsiblings. The nanny of the employee’s child is also not covered.

An employer can request reasonable proof before paying the worker. In other words:

• Upon the death of the above-mentioned family member, a death certificate and proof that the deceased is a close family member may be required;
• Upon the birth of a child, a birth certificate and proof of parenthood may be required; and
• When a child is ill, a medical certificate may be required. The BCEA does not define “illness” and only stipulates that reasonable proof may be required.

An employee may take family responsibility leave for the entire day or only part of it. Family responsibility leave lapses if it is not taken in the annual leave cycle. Therefore, it cannot be accumulated.

 

When it comes to family responsibility leave, the employer must pay the employee the amount to which the employee would have been entitled if he/she had worked that day, and the payment must be made on the usual payday.

 

If a situation arises during an employee’s annual leave that makes the employee eligible for family responsibility leave, the employer must convert the annual leave to family responsibility leave.

 

Note that a collective agreement could change the number of days and the conditions under which family responsibility leave is granted.

Leave

Question:

I have worked for a company for almost two years and enrolled for part-time studies at the beginning of the year. I took a few days off to write exams. Can the employer deduct my study leave from my annual leave? The employer also wants me to take leave during December when the company closes for business.

Answer:

The Basic Conditions of Employment Act does not make provision for study leave. Therefore, your employer can use his discretion in granting study leave. You mention that you “took a few days off” to write exams. If your employer did not specifically grant study leave and you were paid for the days you took off (paid leave), the leave taken will be deducted from your annual leave. Similar leave that is granted at the discretion of the employer is leave for sport activities.

This time of the year, many companies close for business or make use of skeleton staff to keep the operational side of the business running. In this case the employer can require you to put in ordinary leave, known as compulsory leave, which is a form of paid leave. If your ordinary leave has been used up at this point, the employer can require you to make up for those the days or to take unpaid leave.

 

Question:
How many days’sick leave am I entitled to and do I have to hand in a medical certificate?

Reply:
Sick leave is regulated in terms of section 22 of the Basic Service Conditions Act.

Section 22 states that an employee is entitled to six weeks’ paid sick leave in a cycle of 36 months.

In the first six months after beginning his or her employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

The employee has to prove illness in terms of section 23 of the Basic Service Conditions Act. An employer can demand a medical certificate before paying an employee who is absent for more than two consecutive days or somebody who is often absent.

Question
We have a policy whereby we have to apply for leave three months in advance. I applied for leave in December and it was approved. It is now almost time for me to go on leave, but I have as yet not received any indication that I will get my leave. Every day I get empty promises, but no answer. What can I do?

Answer
The granting of leave depends on the agreement between the employee and the employer, but the approval of leave ultimately lies in the discretion of the employer.

Section 20(10) of The Basic Conditions of Employment Act provides that:

20 (10) Annual leave must be taken—
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.

It would be best to contact the employer and ask whether or not the leave has been granted. You mention that it has been granted. You can therefore invoke section 20(10)(a). Unfortunately, as has been said, approving the leave lies within the discretion of the employer and the employer may even withdraw the permission based on operational requirements.

 

The Public Service Coordinating Bargaining Council’s Resolution 7 of 2000, as amended by Resolution 5 of 2001, regulates the process that has to be followed when an employee of the state wishes to apply for temporary incapacity leave. Paragraph 7.5.1 of the resolution reads as follows:

7.5.1.  (a)  An employee whose normal sick leave credits in a cycle have been exhausted and who, according to the relevant practitioner, requires to be absent from work due to disability which is not permanent, may be granted sick leave on full pay provided that:
i) Her or his supervisor is informed that the employee is ill; and
ii) a relevant registered medical and/or dental practitioner has duly certified such a condition in advance as temporary disability except where conditions do not allow.
(b) The employer shall, during 30 working days, investigate the extent of inability to perform normal duties, the degree of inability and the cause thereof. Investigations shall be in accordance with item 10(1) of Schedule 8 of the Labour Relations Act of 1995.
(c) The employer shall specify the level of approval in respect of applications for disability leave.
Employees of the state therefore have the privilege to apply for temporary incapacity leave if their annual sick live has been exhausted and they have been issued a medical certificate by a registered medical or dental practitioner. If such an application is approved, the employee will continue to receive his salary during his extended sick leave, even though his annual sick leave has been exhausted.

The following important aspects must be kept in mind to ensure that an application for temporary incapacity leave is successful:
1) A registered medical or dental practitioner must issue a medical certificate to the employee, stating that the employee is not fit for work and specifically indicating that temporary incapacity leave is recommended by the practitioner.
2) The employee must provide a copy of the medical certificate to his manager as soon as possible, preferably on the same day the medical certificate was issued, and obtain a receipt as proof that the medical certificate was handed over to the manager.

Furthermore, paragraph 7.5.1 of the resolution in question must be read in conjunction with paragraph 7 of the Policy and Procedure on Incapacity Leave and Ill-health Retirement (PILIR) dated April 2009 that explains the process in more detail. The most crucial aspects for an employee to remember are set out in paragraph 7.1.8 of the PILIR:
“7.1.8. An employee must submit an application form for temporary incapacity leave personally or through a relative, fellow employee or friend within 5 working days after the first day of absence.”

Therefore, an employee must request a formal application form for temporary incapacity leave from his employer within five working days after the first day of absence, complete the application form, ensure that the medical or dental practitioner completes the relevant section of the form and hand over the application form together with the medical certificate to his manager. The employee must also retain proof of having handed the application form to his manager.
An employee is not entitled to temporary incapacity leave; it is merely a privilege. Therefore, the granting of temporary incapacity leave lies in the employer’s discretion. An employee is only entitled to a fair process when his application for temporary incapacity leave is being considered. If an employee does not follow the first steps as explained above, the employer will not be in a position to follow a fair process and the application will be rejected.

The different types of leave that an employee is entitled to are stipulated in the Basic Conditions of Service Act (No 75 of 1997).  The relevant sections are sections 19 to 27. The types of leave are the following: • Annual leave • Sick leave • Maternity leave • Family responsibility leave Annual leave – Section 20 Annual leave applies where an employee works for more than 24 hours a month for an employer.  The leave can only be taken with the agreement of both parties as to when when such leave may be taken, in other words the employer may refuse to grant leave on a specific date/during a specific period if justified by operational requirements. Some employers also stipulate that leave has to be taken at a specific time, for example when the employer’s business closes during the festive season.

An employee must be granted at least 21 days’ leave per year, which leave is calculated from the date of commencement of employment, and not per calendar year, or 1 day’s leave for every 17 days worked, of 1 hour for every 17 hours worked. Public holidays are not considered as leave.  Should leave from the previous cycle not be used, then it can be taken within the first 6 months of the new cycle.

The employee must receive full remuneration when this type of leave is taken. Remuneration must be given before the start of annual leave, or on the employee’s normal pay day, if so agreed.

Sick Leave – Section 22 Sick leave is calculated over a cycle of three years. During the first 6 months an employee may take 1 day’s paid sick leave for every 26 days worked.  Thereafter an employee may take the number of days as sick leave equal to the number of days the person would work during a period of six weeks during a period of six weeks. (A 5-day workweek amounts to 30 days’ sick leave per 3-year cycle).

Should an employee be off sick for 2 days or longer or twice within an 8-week period, the employer may ask such person to submit a medical certificate; should such certificate not be submitted the employer may withhold payment in respect of those days the employee was not at work.

Maternity leave – Section 25 This type of leave only applies to female employees.  An employee may take at least four months’ unpaid maternity leave onbetaalde . The leave can commence at any time four weeks prior to the expected date of the birth or at a date a doctor or midwife considers to be necessary for it to be taken for the sake of the health of the mother or baby.  The employee should preferably notify the employer in writing about the date on which she intends to go on maternity leave. An employee may not return to work for a period of six weeks after the birth, unless a doctor or midwife certifies that the employee is fit to resume work. In the event of a miscarriage during the last trimester or in the case of a stillbirth the employee is entitled to six weeks’ maternity leave regardless of whether or not maternity leave has already commenced at the time of such event.

Family responsibility leave – Section 27 If an employee has been working for the same employer for more than four months and works at least four days a week or more, then the employee may take three days of paid family responsibility leave during each leave cycle.  The criteria (circumstances and persons involved in such circumstances) in terms of which an employee is eligible for this type of leave are rather restricted.  The criteria are limited to: 1) The birth of an employee’s child 2) Illness of an employee’s child 3) In the event of the death of the employee’s: (a) Spouse (b) Partner (c) Parent (d) Adoptive parent (e) Grandfather or grandmother (f) Child (g) Adopted child (h) Brother or sister

In conclusion In each instance, the leave discussed here above deals with the minimum requirements stipulated in the Act. In certain instances employers may offer more favourable conditions, and in such cases the employee has to familiarise him/herself with the facts.

Question: I would like to know if a pregnant woman is entitled to three months’ maternity leave. Is the employer obliged to pay you for those three months or do you have to claim from the Unemployment Indemnity Fund (UIF)? I also want to know what I should do if my contributions to the UIF and PAYE are not paid over correctly?

Answer: During maternity leave, an employer is not obliged to remunerate an employee. In addition, the employer also does not have to pay medical and pension fund contributions. The reason is that employees can claim from the Unemployment Indemnity Fund (UIF). The procedures and requirements are available at www.labour.gov.za. Unfortunately, this is how it works, and the employee could feel compelled to return to work early from maternity leave. The Basic Conditions of Employment Act stipulates that an employee is entitled to four months of maternity leave.

Question: When must I inform my employer that I need to go on maternity leave?

Answer: The employee must inform the employer in writing of the date on which she plans to go on maternity leave and of the date on which she will return to work. The notice must be given at least four weeks before the start of the leave.

Question: To how much maternity leave am I entitled and when can I take the leave?

Answer: If an employee works for more than 24 hours per week, she is entitled to four consecutive months of maternity leave, as stipulated in section 25 of the Basic Conditions of Employment Act. The employee can go on leave any time within four weeks before the birth of the child, or on the date certified by a medical practitioner of midwife to be necessary for the safety of the employee or the unborn child.

Question: How soon after the birth of the child can I go back to work?

Answer: An employee may not work for at least six weeks after the birth of the child unless a midwife or medical practitioner certifies that the employee may go back to work. In the case of a miscarriage in the third trimester or if the child is stillborn the employee is entitled to six weeks of maternity leave.

Question: Is the employer obliged to adjust my responsibilities if there are any dangers to the unborn child?

Answer: According to section 26 of the Basic Conditions of Employment Act, the employer may not compel or allow an employee to work under conditions that pose a danger to the unborn child or to a breastfeeding woman. During a period of six months following the birth of the child the employer has to provide the employee with alternative work.

Question: Is maternity leave paid leave?

Answer: Maternity leave is in most cases unpaid leave, unless the employer has a policy or agreement that stipulates otherwise. During maternity leave the employee can, however, claim UIF as determined by the minister of labour, subject to the Unemployment Insurance Act.

Question: Is a man also entitled to maternity leave?

Answer: According to section 27 of the Basic Conditions of Employment Act, a man can take three days of family responsibility leave upon the birth of a child.

Phil Davel

Question: I have a question regarding maternity leave. Where does one draw the line between sick leave before delivery and the start of maternity leave?

Answer:

The reason why employees would rather take sick leave instead of maternity leave is because the Basic Conditions of Employment Act (BCEA) compels the employer to pay out sick leave, but not maternity leave. This is because employees can claim UIF during maternity leave. However, there may be a contractual agreement stipulating that the employer will pay the employee’s entire salary or part of it during her maternity leave. There is, however, no statutory obligation to do this.
Section 25 of the BCEA stipulates that an employee is entitled to at least 16 weeks of continuous maternity leave. She is entitled to go on maternity leave from four weeks before delivery, or from a date deemed necessary by a doctor. However, an employee may not work again before six weeks have passed since delivery. Therefore, suppose the employee only takes maternity leave a week before delivery, then it would be possible for her to only take a total of seven weeks’ maternity leave because she would be back at work six weeks after giving birth. Note that she is merely entitled to 16 weeks’ leave and is not obliged to take leave for the full period.

Can I booked off for sick leave by my doctor instead of going on maternity leave?

There needs to be a distinction between sick leave and maternity leave. Although an employee could claim that she is unfit for work due to illness (and not due to the upcoming birth), the medical doctor would have to indicate such an illness on the medical certificate. Note that an employer reserves the right to dispute the medical certificate and ask the employee to go to the employer’s own medical practitioner. As mentioned, the employee might want to claim sick leave instead, but it would be dishonest to assert that the absence is due to illness if it is not the case. A doctor can, therefore, book you off in this manner, but then it has to be due to illness.
Note that if there are complications with the pregnancy and if a doctor certifies that it is necessary for the sake of the employee or her unborn child to go on earlier maternity leave, it will not be classified as sick leave (section 25(2)(b)).

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
Which conditions apply to maternity leave?

Answer:
If an employee works more than 24 hours per week, she is entitled to four consecutive months’ maternity leave in terms of Section 25 of the Basic Conditions of Employment Act. The employee may go on leave at any time four weeks prior to the birth of the child or on the date certified by a medical practitioner or midwife for the safety of the employee or the unborn child. An employee may not work for a period of at least six weeks after the birth of the child, unless a midwife or medical practitioner certifies that the employee may return to work. In the case of a miscarriage during the third trimester or if the child is still-born, the employee is entitled to six weeks maternity leave from the date of the miscarriage or the still birth of the child.
In terms of Section 26 of the Basic Conditions of Employment Act an employer may not oblige or allow an employee to work under conditions which are unsafe for the unborn child or a woman who breastfeeds. During this time the employer should provide the employee with suitable alternative work for a period of six months after the birth of the child.
The employee should notify the employer in writing on which date she plans to go on maternity leave and on which date she will return to work. This notice should be given to the employer before the leave starts.
In most cases maternity leave is unpaid leave, as it is not required in terms of legislation, unless the employer is bound by a policy or agreement which determines otherwise. During maternity leave the employee may claim unemployment insurance as determined by the Minister of Labour, subject to the conditions of the Unemployment Insurance Act. In terms of Section 27 of the Basic Conditions of Employment Act a man may take three days’ family responsibility leave when his child is born.
For further information in respect of maternity leave, please phone Solidarity’s legal experts at the Service Centre, 0861 25 24 23.

By Johan Roos

A female employee may be absent from work for at least six weeks after the birth of her child, unless a midwife or medical practitioner certifies that the employee is fit to return to work. In the case of a miscarriage during the third trimester of if the child is stillborn, the employee is also entitled to six weeks’ maternity leave.

 

An employee is not allowed to work for at least six weeks after the birth of a child unless a midwife or medical practitioner certifies otherwise. If a miscarriage occurs during the third trimester or if a child is still-born, the employee is entitled to six weeks maternity leave after any of these situations.

 

 

 

Question: What will happen if I extend my sick leave when I am too ill to go back to work?

Answer: The same regulations applicable to sick leave will apply in such a case. If an employee was absent for more than two consecutive days, he must provide the employer with a medical certificate.

Question:

What will happen if I extend my sick leave when I am too ill to go back to work?

 

Answer:

The same regulations applicable to sick leave will apply in such a case. If an employee was absent for more than two consecutive days, he must provide the employer with a medical certificate.

Question:
I’m working for a company and I want to know how much sick leave I’m entitled to according to law.

Reply:
Section 22 of the Basic Conditions of Employment Act stipulates that every employee is entitled to sick leave.

If the employee has been working for the employer for less than six months, the following will apply:

“… [An] employee is entitled to one day’s paid sick leave for every 26 days worked. An employer may reduce the employee’s entitlement to sick leave by the number of days’ sick leave taken.”

I would suggest that the employer count the number of days an employee has worked and divide it by 26. The following serves as an example: If 100 days were worked, 100 must be divided by 26, giving a total of 3,84 days’ sick leave which may be taken at normal pay. If the employee took more days’ sick leave (more than the 3,84 he/she is entitled to at that stage), unpaid leave will take effect, if both parties have agreed that it could be used for sick leave. Let’s assume the employee took 10 days’ sick leave, for example, while he/she was only entitled to 3,84 days’ sick leave at that stage, the balance of days used for sick leave would be subject to unpaid leave, unless another arrangement was made. Therefore, the employee would have used 6,16 days’ unpaid leave.

If the employee has been working for the employer for longer than six months, the following will apply:

A sick leave cycle means the period of 36 months’ employment with the same employer immediately following an employee’s commencement of employment; or the completion of that employee’s prior sick leave cycle. During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

If the employee has been working for longer than six months and works according to a five- day work week, then he/she is entitled to 30 days’ paid sick leave. This allocation of 30 days is available in full after six months’ employment, and is available to the employee until the end of a 36 month term of service, whereafter a next leave cycle will commence. In practice, it means that the employee could even take 30 days’ sick leave during his/her first year of employ as long as he/she has already completed six months’ employment with the employer. The employee must, however, bear in mind that his/her sick leave for the remainder of the 36 months will then be exhausted, and that any sick leave taken within the first six months of employment will first be deducted from the 30 days.

 

By Phil Davel

Question
I need some information. I submitted a valid sick note at my work to say that I had been booked off for ten days, but when I checked my salary, I noted that ten days’ money had been deducted. What can I do?

Answer
It is difficult to determine what you should do because there could be valid reasons why ten days’ money was deducted from your salary. It could be that you had less than six months’ service with your employer. The Basic Conditions of Service Act stipulates that during the first 6 months of your service you are entitled to only one day’s sick leave for every 26 days worked.

It could also be that you had already exhausted all the sick leave to which you are entitled. You and your employer could then agree to have it subtracted from your ordinary leave, otherwise it becomes unpaid leave.

However, should you have been entitled to ten days’ sick leave and your employer still deducted the money, it could be that he does not believe that you were really sick. He could possibly claim that there was a history of misuse of sick leave. You may then request by means of an internal grievance procedure that the matter be addressed in a reasonable way to give you an opportunity to explain matters.

However, should none of the above-mentioned actions be possible, you can refer the matter to the nearest office of the Department of Labour. They will contact the employer enquire why the money was deducted from your salary.

Legal question: Paternity Leave By Phil Davel Question: What does the law say about paternity leave? How many days’ leave will I be entitled to take when my child is born? Answer: The Basic Conditions of Employment Act (Act no. 75 of 1997), as amended, includes a provision for family responsibility leave in Section 27. Subsection 27(2)(a) determines that an employee is entitled to family responsibility leave when his or her child is born. Therefore, a father is entitled to family responsibility leave when his child is born. “Paternity leave” is merely a term that is sometimes used to refer to this subsection of the Act, although the Act uses the term “family responsibility leave”. Nothing prohibits an employer from including a special, additional category of leave in the company’s leave policy. Such categories are quite common in the leave policies of foreign companies. An employee who has been employed for at least four months and who works at least four days a week and 24 hours a month for the same employer, may take at least three days of paid family responsibility leave during each leave cycle. Family responsibility leave is granted in the following cases only: 1. When the employee’s child is born or is sick. 2. In the event of the death of the employer’s – – spouse or life partner; – parent, adoptive parent, grandparent; – child, adopted child or grandchild; or – sibling. An employer may request an employee to provide reasonable proof of such an event before the employee is paid. In other words, if the employee’s child is born, a birth certificate and, possibly, proof of paternity should be provided to the employer. An employee may take family responsibility leave for a whole day or part of a day. The leave expires at the end of the annual leave cycle and cannot be accrued. When an employee takes family responsibility leave, he or she must be paid the usual wages for the day(s) in question on the normal payday.

A collective agreement could revise the number of days or the circumstances in which family responsibility leave is granted and an employer may grant more than the required number of days. Such a revision will be set out in the company’s leave policy.

Question:

I have to attend a cremation service in Australia of a family member who emigrated there. I would like to know, if I have to take nine days’ leave to attend the service, could I have it deducted from my family responsibility leave over three years?

Answer:

In terms of section 27 of the Basic Conditions of Service Act, every employee has only three days’ family responsibility leave per year. It cannot be carried over to a following year and you cannot take nine days’ family responsibility leave in advance, unless, of course, the employer allows it, but you will not be entitled to it in terms of the Act.

If you took three days’ family responsibility leave during the course of the year, you have exhausted it and you will have to take ordinary leave should you need more leave in the same year. You will not be able to take nine days now and not take family responsibility leave for the next three years.

Sick leave, however, is different. Section 22 stipulates that you have 36 days’ continuous sick leave in every three-year cycle and if you take all of it during the first year, you have nothing left for the rest of the three years. Section 27 (which deals with family responsibility leave in the event of the death of a family member, as provided for in the Act), however, does not mention a three-year period/cycle.

Remember that your starting point will always be to consult your employment contract or the employer’s leave policy. It is possible that the contract or policy could be more favourable than the Basic Conditions of Service Act. You may also ask the employer for a special concession but, if the provisions of section 27 are being complied with, you have, as was mentioned, only three days’ family responsibility leave a year and you will have to take ordinary leave if you want to take the other six days.

Feel free to contact the Solidarity Call Centre on 0861 25 24 23 if you have any further enquiries about family responsibility leave.

Question: I would like to know if a pregnant woman is entitled to three months’ maternity leave. Is the employer obliged to pay you for those three months or do you have to claim from the Unemployment Indemnity Fund (UIF)? I also want to know what I should do if my contributions to the UIF and PAYE are not paid over correctly?

Answer: During maternity leave, an employer is not obliged to remunerate an employee. In addition, the employer also does not have to pay medical and pension fund contributions. The reason is that employees can claim from the Unemployment Indemnity Fund (UIF). The procedures and requirements are available at www.labour.gov.za. Unfortunately, this is how it works, and the employee could feel compelled to return to work early from maternity leave. The Basic Conditions of Employment Act stipulates that an employee is entitled to four months of maternity leave.

Question: When must I inform my employer that I need to go on maternity leave?

Answer: The employee must inform the employer in writing of the date on which she plans to go on maternity leave and of the date on which she will return to work. The notice must be given at least four weeks before the start of the leave.

Question: To how much maternity leave am I entitled and when can I take the leave?

Answer: If an employee works for more than 24 hours per week, she is entitled to four consecutive months of maternity leave, as stipulated in section 25 of the Basic Conditions of Employment Act. The employee can go on leave any time within four weeks before the birth of the child, or on the date certified by a medical practitioner of midwife to be necessary for the safety of the employee or the unborn child.

Question: How soon after the birth of the child can I go back to work?

Answer: An employee may not work for at least six weeks after the birth of the child unless a midwife or medical practitioner certifies that the employee may go back to work. In the case of a miscarriage in the third trimester or if the child is stillborn the employee is entitled to six weeks of maternity leave.

Question: Is the employer obliged to adjust my responsibilities if there are any dangers to the unborn child?

Answer: According to section 26 of the Basic Conditions of Employment Act, the employer may not compel or allow an employee to work under conditions that pose a danger to the unborn child or to a breastfeeding woman. During a period of six months following the birth of the child the employer has to provide the employee with alternative work.

Question: Is maternity leave paid leave?

Answer: Maternity leave is in most cases unpaid leave, unless the employer has a policy or agreement that stipulates otherwise. During maternity leave the employee can, however, claim UIF as determined by the minister of labour, subject to the Unemployment Insurance Act.

Question: Is a man also entitled to maternity leave?

Answer: According to section 27 of the Basic Conditions of Employment Act, a man can take three days of family responsibility leave upon the birth of a child.

Phil Davel

Question: I have a question regarding maternity leave. Where does one draw the line between sick leave before delivery and the start of maternity leave?

Answer:

The reason why employees would rather take sick leave instead of maternity leave is because the Basic Conditions of Employment Act (BCEA) compels the employer to pay out sick leave, but not maternity leave. This is because employees can claim UIF during maternity leave. However, there may be a contractual agreement stipulating that the employer will pay the employee’s entire salary or part of it during her maternity leave. There is, however, no statutory obligation to do this.
Section 25 of the BCEA stipulates that an employee is entitled to at least 16 weeks of continuous maternity leave. She is entitled to go on maternity leave from four weeks before delivery, or from a date deemed necessary by a doctor. However, an employee may not work again before six weeks have passed since delivery. Therefore, suppose the employee only takes maternity leave a week before delivery, then it would be possible for her to only take a total of seven weeks’ maternity leave because she would be back at work six weeks after giving birth. Note that she is merely entitled to 16 weeks’ leave and is not obliged to take leave for the full period.

Can I booked off for sick leave by my doctor instead of going on maternity leave?

There needs to be a distinction between sick leave and maternity leave. Although an employee could claim that she is unfit for work due to illness (and not due to the upcoming birth), the medical doctor would have to indicate such an illness on the medical certificate. Note that an employer reserves the right to dispute the medical certificate and ask the employee to go to the employer’s own medical practitioner. As mentioned, the employee might want to claim sick leave instead, but it would be dishonest to assert that the absence is due to illness if it is not the case. A doctor can, therefore, book you off in this manner, but then it has to be due to illness.
Note that if there are complications with the pregnancy and if a doctor certifies that it is necessary for the sake of the employee or her unborn child to go on earlier maternity leave, it will not be classified as sick leave (section 25(2)(b)).

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
Which conditions apply to maternity leave?

Answer:
If an employee works more than 24 hours per week, she is entitled to four consecutive months’ maternity leave in terms of Section 25 of the Basic Conditions of Employment Act. The employee may go on leave at any time four weeks prior to the birth of the child or on the date certified by a medical practitioner or midwife for the safety of the employee or the unborn child. An employee may not work for a period of at least six weeks after the birth of the child, unless a midwife or medical practitioner certifies that the employee may return to work. In the case of a miscarriage during the third trimester or if the child is still-born, the employee is entitled to six weeks maternity leave from the date of the miscarriage or the still birth of the child.
In terms of Section 26 of the Basic Conditions of Employment Act an employer may not oblige or allow an employee to work under conditions which are unsafe for the unborn child or a woman who breastfeeds. During this time the employer should provide the employee with suitable alternative work for a period of six months after the birth of the child.
The employee should notify the employer in writing on which date she plans to go on maternity leave and on which date she will return to work. This notice should be given to the employer before the leave starts.
In most cases maternity leave is unpaid leave, as it is not required in terms of legislation, unless the employer is bound by a policy or agreement which determines otherwise. During maternity leave the employee may claim unemployment insurance as determined by the Minister of Labour, subject to the conditions of the Unemployment Insurance Act. In terms of Section 27 of the Basic Conditions of Employment Act a man may take three days’ family responsibility leave when his child is born.
For further information in respect of maternity leave, please phone Solidarity’s legal experts at the Service Centre, 0861 25 24 23.

By Johan Roos

A female employee may be absent from work for at least six weeks after the birth of her child, unless a midwife or medical practitioner certifies that the employee is fit to return to work. In the case of a miscarriage during the third trimester of if the child is stillborn, the employee is also entitled to six weeks’ maternity leave.

 

An employee is not allowed to work for at least six weeks after the birth of a child unless a midwife or medical practitioner certifies otherwise. If a miscarriage occurs during the third trimester or if a child is still-born, the employee is entitled to six weeks maternity leave after any of these situations.

 

 

 

By Adv. Paul Mardon

Question:

A month ago I resigned at mine A to take up a better position at another mine. I was medically examined when I left the service of the mine. The mine doctor and I regularly clashed over small things in the past and he refused to give me a certificate for this medical examination. I secured a good position at another mine, but they require a medical certificate from my previous employer for the medical examination that I underwent when I left the service of mine A. The other mine refuses to appoint me without this medical certificate. I asked my previous employer to give it to me, but the mine doctor says that it was their medical examination and they refuse to give it to me or the new mine. Is the mine obliged to give me the results of my last medical examination?

Answer:

Section 17 of the Mine Health and Safety Act (Act 29 of 1996), read with section 19, stipulates that an employer shall, at the cost of the employer, upon termination of service for whatsoever reason perform an exit medical examination on employees who are subject to medical surveillance at a mine. The occupational medical practitioner who performs the examination must prepare an exit certificate that reflects the results of all medical surveillance and it must specify whether any occupational diseases are present. A copy of this exit certificate must be filed in the empoyee’s medical surveillance record and, at the request of the employee, the employer must provide a copy of this record to the employee. Anybody who refuses to provide this exit certificate to the employee at his/her request, is guilty of a misdemeanor in terms of section 91 of the said act and, if found guilty, could be sentenced to a fine or imprisonment for a period not exceeding six months. I suggest that you report the doctor’s refusal to provide the exit certificate to your previous employer’s Human Relations Manager and that, should the employer still refuse to provide the certificate, you report it to the office of the Inspector of Mines of the Department of Minerals and Energy in your area.

Question:

I work as a cashier at a café in Bloemfontein.

My employer has accused me of misconduct, including the assault of a client and malicious damage of the employer’s property.

I feel that my employer is targeting me and I don’t think it will be worthwhile to attend the disciplinary hearing.

I would rather resign than go through the trauma of a hearing.

Answer:

The member has to realise that the employer is entitled to continue with the disciplinary hearing in the absence of the employee.

However, there is no provision in the Basic Conditions of Employment that prevents workers from resigning before the hearing.

There is furthermore no provision that prevents the employer to refuse the employee’s resignation.            

However, should the member resign she will forfeit her right to defend herself against the charges.      

She could not approach the Commission for Conciliation Mediation and Arbitration (CCMA) later and allege that she has been dismissed without the opportunity to defend herself. 

Should the employer pressure the employee to resign, the employee could resign and lay a charge of constructive dismissal at the CCMA.

Should the member resign the hearing will continue in her absence and the chairman will have to decide on the evidence presented to him whether she is guilty or not.

The member also has to keep in mind that if she should resign she still has to work her notice period and if she doesn’t do it, she will be in trouble again. 

The employer could then even add additional charges to the charge sheet or even summons her for breach of contract.                         

In short it’s the employer’s prerogative to continue with the disciplinary hearing and the ruling of the presiding chairman will be recorded in the member’s personal file.

If the member is found guilty in her absence, the employer could indicate the reason for the member’s resignation on her service record as dismissal and not resignation.

Recommendation:

The member should endeavour to come to an agreement with the employer in terms of which she would resign and the employer undertakes not to take any further action, whether according to the labour law or a civil suit or according to the criminal law, against her.

By Phil Davel

Employees must lay down clear rules on conduct in the workplace to ensure employees know what is expected of them and what the consequences will be should they violate any of the rules.

Certain rules, for example, rules dealing with intoxication or violence in the workplace, are so common or obvious that they are not necessarily laid down in a code of conduct, although employees may be expected to obey them.

Discharge owing to misconduct may be justified ‒

• if the employee violated a rule or regulation relating to specific conduct in the workplace;

• if the rule that was violated was valid, reasonable and fair;

• if the employee was aware or can reasonably be expected to have been aware of the rule in question;

• if the rule is consistently applied in the workplace; and

• if discharge would be more suitable than a disciplinary penalty in the specific circumstances.

Discharge for a first offence is usually not acceptable, except if the offence was of such a nature that it makes a continued employee-employer relationship impossible. Examples of such offences include dishonesty, theft, malicious injury to property, assault and gross insubordination.

Every case must be judged on merit and factors such as the underlying circumstances, how long the employee has worked for the company, the nature of the work and previous warnings must be taken into consideration.

Answer:

Misconduct is the most common justification for dismissal in South Africa, but neither the statue law, nor the law of things contains a definition of misconduct. Misconduct can take on many forms, but the legal basis for dismissal is usually the same: The employee violated the regulations of his or her contract in one way or another, or broke the relationship of trust between him or her and the employer.

Misconduct is often defined as an intentional violation of rules in the workplace. These rules are usually set out in an employee’s contract or in a policy or a disciplinary code of the company, or are general practices in the workplace that could justify dismissal. If an employer has not implemented a disciplinary code, Schedule 8 of the Code of Good Practice in the Labour Relations Act will apply, but it is generally regarded as a guideline only.

Before dismissal owing to misconduct can take place, the following questions must be answered:

• Was a workplace regulation violated and does that regulation relate to keeping order in the workplace?
• Is it a valid regulation?
• Was the employee aware of the regulation, or can it be reasonably assumed that the employee was aware of the regulation?
• Is dismissal a suitable sanction for the specific misconduct?

By Phil Davel

Reply:

An employee who simply stays away from work can be charged with misconduct, more specifically for being absent without leave or even for having absconded.

The consequence could be a disciplinary hearing which would in all probability result in a sanction. The sanction depends on the employer’s disciplinary code and could vary between a warning (verbal or written), a final written warning, suspension, demotion, et cetera.  Depending on whether procedure was correct, the merits of the case, extenuating and aggravating circumstances (for example, the person has already received a final, written warning for the same offence), the hearing may even result in discharge. However, the employer may not withhold the person’s salary.

Our advice is that an employee should preferably obtain permission beforehand and put in leave for the specific days.

By Phil Davel

Question

A charge of misconduct was laid against me and I have to attend a disciplinary hearing. My employer gave me four days’ notice of the hearing. Is that enough time?

Answer

Four days’ notice could be enough time to prepare for the hearing. The number of days’ notice given to an employee before a disciplinary hearing is not prescribed in any regulation or Act, but it must be reasonable. You could consult the company’s disciplinary code to see whether or not there is a set notice period. If the disciplinary code prescribes a notice period, the employer is bound to it.

However, if you are of the opinion that you don’t have enough time to prepare for the hearing, you must request a postponement in writing, providing reasons for your request. The reasons must relate to the charge, for example, that you need time to obtain witnesses and evidence for your defence. In the case of a charge of poor performance you may need more time to prepare than, for example, in the case of a charge of misconduct (for example, if you reported late for work). The Code of Good Practice in Schedule 8 of the Labour Relations Act stipulates that an employee should be entitled to a reasonable period to prepare his or her defence.

If an employee is given an unreasonable period in which to prepare for a disciplinary hearing, he or she could object to the time given and ask for a postponement. The employee could also lodge an appeal based on procedural unfairness.

Question:

What are my rights in the workplace?

Answer:

The employee’s rights are protected by the Basic Conditions of Employment Act (Act 75 of 1997). These rights are set out in Section 78 of the legislation.

According to Section 78, an employee has the following rights:

Lodging a complaint with a trade union representative of a recognised trade union or labour inspector regarding any negligence in complying with the guidelines of the Basic Conditions of Employment Act.

Discussing his/her conditions of employment with fellow employees and also with the employer or any other person.

Ignoring an order that is in conflict with a sectoral provision or the provisions of the Basic Conditions of Employment Act.

Question 5: May my employer force me to work during my leave?

Answer: It is important to emphasize that the employee may not be forced to work during his leave period.

Phil Davel

Question:

I work as a site manager for a construction company. This morning I suddenly received a final written warning because I was working in my office yesterday and not on site. I haven’t received any verbal or other warnings and I feel that I don’t deserve a final warning. Meanwhile, my project manager has written a letter to the company’s management to say that he had instructed me to complete urgent paperwork. I still feel that I was treated unfairly and I have refused to sign the warning. What are my rights?

Answer:

1. Firstly, it is important to understand that the fact that an employee does not sign a written warning does not make the warning invalid. It is still valid. By signing the warning, the employee does not necessarily acknowledge guilt, but merely acknowledges receipt of the document. Because written warnings are more formal than verbal warnings (and it is recorded in writing), it serves as proof that the warning has been issued (if it becomes necessary to follow the disciplinary steps).

2. Secondly, legislation does not stipulate that a final written warning has to be preceded by a verbal warning, then a first written warning, and only then a second written warning. It is a misconception and the steps to be taken are usually determined by the severity of the transgression. This will be recorded in the company’s disciplinary code and policy.

Schedule 8 of the Labour Relations Act (Act 66 of 1995) does provide a few guidelines. Item 3(1) stipulates, among other things, that the disciplinary rules of employers must ensure certainty and consistency for enforcing discipline. It requires that the standard according to which actions are measured is clear and that it is made available to the employee in such a way that it is easy to understand. Certain rules and standards might be common knowledge and therefore do not have to be communicated beforehand. Therefore, it is best to refer to the company’s disciplinary code.

3. Lastly, if an employee receives a warning, he/she basically has two options:

a) He/She could accept it and continue with his/her work. This is usually the best option for three reasons:

i. It is simply a warning and does not involve a change in the status quo, as would, for example, be the case with a demotion or dismissal.
ii. A warning is only temporary. Usually a warning expires after a period of six to 12 months. Once again, it depends on the company’s policy or on what is stipulated in the warning. This means that the warning is only valid for that period and only for that specific transgression. The courts have underwritten the validity period of warnings because it would be unfair to hold transgressions against employees indefinitely (ad infinitum).
iii. You are protecting your job. Although an employee has the right not to accept a warning, such conduct could portray him/her in a bad light, which would not be desirable for job protection and/or promotion. This is an important point of view to keep in mind. This also applies to lodging an internal grievance.

b) The employee may question the fairness of the warning and ask that he/she first be granted a thorough and fair hearing. The issuing of a written warning must usually be preceded by at least a thorough investigation, where the employee is given the opportunity to explain his/her side of the matter and, if necessary, to give evidence.

It seems that in this case a thorough investigation did not take place before the written warning was issued and, therefore, it was issued prematurely. This can be deduced from the employee’s argument that he had acted on the orders of his project manager and he could provide the relevant letter to management as evidence. The best option in this case would be for the employee to request a fair hearing. However, the employee should bear in mind that the chairperson of the hearing could decide to impose a harsher penalty. In other words, it would be a calculated risk.

For any further enquiries regarding written warnings, please call Solidarity’s legal experts at 0861 25 24 23.

Answer:

According to Section 187(1) of the Labour Relations Act dismissal on ground of trade union membership is automatic unfair dismissal. Section 5 of the Labour Relations Act makes provision for employees to belong to a trade union and Section 18 of the Constitution also provides for freedom of association. 

Any employee, including a senior manager, is therefore allowed to join or belong to a trade union without being victimised or dismissed. 

There are cases like IMATU & others v Rustenburg Transitional Council [1999] 12 BBLR 1299 (LC) that sheds more light on the topic. In this case the employer implemented a policy whereby senior managers were forbidden to belong to a trade union. The Labour Court found that this policy stands against freedom of association, regardless of the employees’ position in the company.

The employee is protected under law for his/her trade union activities, but is still obliged to perform his/her required duties at the company. This means that the employee still has to perform his/her duties to the best of his/her ability and for the wellbeing of the company. 

It is also important to look at the case of Kelhwar v SANCA (1991) 12 ILJ 816 (IC). The case is about conflict. A manager was retrenched because she was not prepared to give up her position on a personnel forum. The employer argued that it caused conflict of interest. The Industrial Court found that her actions was not in conflict of the interests of the employer but stated that if there were conflicting interests, her dismissal would have been fair.  

For more information on immediate unfair dismissal or trade union membership, phone Solidarity’s legal experts at the Service Centre on 0861 25 24 23.

Question:
What rights does an employee working nightshift have?

Answer:
Nightshift is regulated by Section 17 of the Basic Conditions of Employment Act. In terms of this section, nightshift is regarded as hours worked between18:00 and 06:00. An employee may only work nightshift if the employee receives an allowance or reduction of working hours. It has to be determined whether transport will be available between the workplace and the employee’s house.

An employer that requires his/her employees to work between 23:00 and 06:00 must inform the employees verbally or in writing, in a language they understand, of any dangers involved in the work they will have to do. The employer also has the right to insist on a medical examination to determine whether the employee would be able to cope with the dangers associated with nightshift. If the employee is found to be unfit for nightshift, the employee must be transferred to a suitable dayshift.

The guidelines regarding nightshift can also be influenced by sectoral stipulations and collective agreements.

Question: Am I entitled to promotion?

Answer: Section 186(2)(a) of the Labour Relations Act defines unfair labour practice as “any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

Question: I would like to know if my employer can refuse to allow me to take smoke breaks. Isn’t he infringing on my rights? We have always taken two smoke breaks of 15 minutes each per day, but now our manager is refusing, saying that we cannot smoke on the balcony. What does the law say about this?

Answer: Permitting smoke breaks, just as tea and coffee breaks, is not currently required, prohibited or regulated by labour legislation. Although each employer shouldhave a written smoking policy in the workplace, it is subject to the discretion of the employer and it is a privilege granted to employees. It is, however, important for employers to realise that permitting smoke breaks should be evaluated in light of the working conditions and the morale and needs of employees, but smoke breaks remain a privilege and not something to which an employee is entitled. An employer can even completely prohibit smoke breaks, even if the nature of the workplace does not require it.

Legal question answered by Phil Davel, Solidarity Legal Services, Service Centre

Question:
I work as a site manager for a construction company. This morning I suddenly received a final written warning because I was working in my office yesterday and not on site. I haven’t received any verbal or other warnings and I feel that I don’t deserve a final warning. Meanwhile, my project manager has written a letter to the company’s management to say that he had instructed me to complete urgent paperwork. I still feel that I was treated unfairly and I have refused to sign the warning. What are my rights?

Answer:
1. Firstly, it is important to understand that the fact that an employee does not sign a written warning does not make the warning invalid. It is still valid. By signing the warning, the employee does not necessarily acknowledge guilt, but merely acknowledges receipt of the document. Because written warnings are more formal than verbal warnings (and it is recorded in writing), it serves as proof that the warning has been issued (if it becomes necessary to follow the disciplinary steps).
2. Secondly, legislation does not stipulate that a final written warning has to be preceded by a verbal warning, then a first written warning, and only then a second written warning. It is a misconception and the steps to be taken are usually determined by the severity of the transgression. This will be recorded in the company’s disciplinary code and policy.
Schedule 8 of the Labour Relations Act (Act 66 of 1995) does provide a few guidelines. Item 3(1) stipulates, among other things, that the disciplinary rules of employers must ensure certainty and consistency for enforcing discipline. It requires that the standard according to which actions are measured is clear and that it is made available to the employee in such a way that it is easy to understand. Certain rules and standards might be common knowledge and therefore do not have to be communicated beforehand. Therefore, it is best to refer to the company’s disciplinary code.
3. Lastly, if an employee receives a warning, he/she basically has two options:
a) He/She could accept it and continue with his/her work. This is usually the best option for three reasons:
i. It is simply a warning and does not involve a change in the status quo, as would, for example, be the case with a demotion or dismissal.
ii. A warning is only temporary. Usually a warning expires after a period of six to 12 months. Once again, it depends on the company’s policy or on what is stipulated in the warning. This means that the warning is only valid for that period and only for that specific transgression. The courts have underwritten the validity period of warnings because it would be unfair to hold transgressions against employees indefinitely (ad infinitum).
iii. You are protecting your job. Although an employee has the right not to accept a warning, such conduct could portray him/her in a bad light, which would not be desirable for job protection and/or promotion. This is an important point of view to keep in mind. This also applies to lodging an internal grievance.
b) The employee may question the fairness of the warning and ask that he/she first be granted a thorough and fair hearing. The issuing of a written warning must usually be preceded by at least a thorough investigation, where the employee is given the opportunity to explain his/her side of the matter and, if necessary, to give evidence.
It seems that in this case a thorough investigation did not take place before the written warning was issued and, therefore, it was issued prematurely. This can be deduced from the employee’s argument that he had acted on the orders of his project manager and he could provide the relevant letter to management as evidence. The best option in this case would be for the employee to request a fair hearing. However, the employee should bear in mind that the chairperson of the hearing could decide to impose a harsher penalty. In other words, it would be a calculated risk.
For any further enquiries regarding written warnings, please call Solidarity’s legal experts at 0861 25 24 23.

Phil Davel

Question: I need information relating to unauthorised access to a computer and e-mail. A colleague snooped around on my computer and in my e-mail without my permission and without going through the required security channels. I have evidence of the colleague’s actions and he also admitted to gaining access to my computer.

Answer: You are absolutely correct that your colleague’s actions were inappropriate and unacceptable. Such action is not only unprofessional, but also unethical. Unfortunately, ethical and professional conduct relating to access to private communication in the workplace is not regulated by a specific act or regulation, with the possible exception of company policy.

However, legislation like section 2 of the Regulation of Interception of Communication Act (RICA) prohibits the kind of conduct that your colleague committed. This section prohibits the interception of communication inside the Republic, subject to certain exclusions. Interception includes, among other things, reading the contents of communication, as in your case.

Apart from RICA, section 14(d) of the Constitution of South Africa protects a person’s right to privacy and the privacy of your communication. The right to privacy is therefore a fundamental human right and in your case this right was violated.

Sections 5 and 6 of RICA permit the employer to intercept your communication, including private communication, in certain circumstances. In your case, however, a colleague intercepted your private communication and not the employer.

We recommend that you lodge an internal grievance against the colleague concerned. Based on the information at our disposal, it appears that you have a definite case which the employer should investigate. As mentioned earlier, your company’s policy may contain regulations that cover your specific situation.

Furthermore, information obtained in an unauthorised manner is usually not permitted as evidence in legal proceedings

By Johan Roos

Pregnant employees’ rights, job security and safety are protected by section 26(1) of the Basic Conditions of Employment Act and the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child as set out in the Act. The Code of Good Practice governs the working conditions of a pregnant employee, ensuring that pregnant women are not exposed to hazardous working conditions.

Furthermore, section 25 of the Basic Conditions of Employment Act makes provision for maternity leave.

Dismissal on the grounds of pregnancy is dealt with in section 187(e) of the Labour Relations Act. Dismissal is automatically unfair if it is based on an employee’s pregnancy.

Question:

I would like to know if I am required to inform an employer during my interview that I am pregnant. I am expecting my first child and I am worried that I will not be appointed if I disclose my pregnancy.

Answer:

It often happens that a prospective or current employee apply for a position, but is concerned that her pregnancy may count against her.

The Basic Conditions of Employment Act only determines that an employee should inform the employer in writing within four weeks, or as soon as practically possible, that she would like to take maternity leave. There is no other legal requirement for a person to disclose her pregnancy status.

The job seeker would however be obligated to disclose her status if the employer specifically asks her if she is aware that she is pregnant. The reason is simply that, if the employer later discovers she was aware of her pregnancy and misled him/her, she could face disciplinary action for dishonesty or breach of confidence. If the job seeker discloses her pregnancy, and she is not appointed, it will be her responsibility to prove that she was discriminated against based on her status.

Question:

I have been working for four years at Company A and I have given my four weeks’ notice before starting to work at Company B. The employer wants me to immediately leave the premises. Am I still entitled to the salary payment of my four weeks’ notice?

Answer:

If the employer does not want you to work your notice period, we need to look at section 38 of the Labour Relations Act. In terms of section 38, the employer is compelled to make a payment for the full notice period should he wish the employee to leave immediately. It is important to emphasise that the employee is obliged to give notice in terms of legislation and his employment contract.

Question:
I would like to put in a grievance at my work, but am not sure how to go about it. I would also know whether it will help me at all.

Reply:
Grievance procedures are not regulated through legislation. Employers are therefore not  compelled to have a specific grievance procedure, but most employers do have one. Grievance procedures are put in place by the employers, and in most cases the human resources division l head the grievance procedure. This division implements a grievance policy regulating the procedure.

Before one takes a case of unfair labour practices, victimisation or discrimination further, all internal solutions must have been exhausted. The grievance procedure is one of these internal solutions which has to be followed. It is important to emphasise that if you make allegations against a person about victimisation or discrimination, you must be able to prove it substantively. The person against whom a grievance has been submitted, can take civil action if you have made false accusations.

If your workplace does not have a grievance procedure in place, write letters to the employer. These must then be escalated systematically to the highest level in the organisation. These letters serve the same purpose as the grievance procedure.

Answer:

In terms of section 34 of the Basic Conditions of Employment Act an employer may deduct money from an employee’s remuneration under the following circumstances:

An employer may deduct from an employee’s remuneration only if in terms of section 34 the employee agrees in writing. The employer may also deduct money in respect of a collective agreement, court order or arbitration award.

Deductions in terms of loss or damage may be made in agreement with the employee only after a fair procedure has been followed.

Answer:

In terms of section 32 of the Basic Conditions of Employment Act (copied below), the employer is obligated to pay his employees’ salaries.

(1) An employer must pay to an employee any remuneration that is paid in money ─
(a) in South African currency;
(b) daily, weekly, fortnightly or monthly; and
(c) in cash, by cheque or by direct deposit into an account designated by the employee.

(2) Any remuneration paid in cash or by cheque must be given to each employee ─
(a) at the workplace or at a place agreed to by the employee;
(b) during the employee’s working hours or within 15 minutes of the commencement or conclusion of those hours; and
(c) in a sealed envelope which becomes the property of the employee.

(3) An employer must pay remuneration not later than seven days after ─
(a) the completion of the period for which the remuneration is payable; or
(b) the termination of the contract of employment.

(4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund.

If the employer fails to do this and the employee earns less than R182 000 a year, a complaint may be lodged with the Department of Labour. I usually suggest that the employee also submit his salary slip and any correspondence between the employer and himself as well as his service contract, if one exists.

By Phil Davel

Question
Our employer unexpectedly requested all of us to go to the police station to have our fingerprints taken. According to them they want to send the prints to the legal consultant. Are they within their rights?

Answer
At this stage it is more of a legal opinion than an absolute law to which we can refer. The employer may probably require as a condition for employment that every applicant should first obtain a police clearance to prove that he has never previously been found guilty of a crime, especially if he will be working with money and finance or in security. For this it will be necessary to have fingerprints taken by the police.

In your legal question you say that the employer ‘unexpectedly’ requires fingerprints. One could argue that this infringes on your fundamental right to dignity and privacy as well as the right to freedom and personal security. It would appear that Prof. Pierre de Vos agrees with this (“On finger prints and the right to privacy”, Constitutionally Speaking, 8 December 2009, by Pierre de Vos). However, he does say that infringement could perhaps be justified if the infringement is minimal.

Our opinion is that it would be unfair to force an employee to provide fingerprints. It would be the same as unfairly requiring or coercing an employee to take a polygraph test. There is sufficient authority that prevents an employer from forcing you.

Apart from being an infringement on privacy, there is also a security aspect. No person would like to have his or her fingerprints to be kept by an employer or any unauthorised person indefinitely.

Although your enquiry is labour-related, it is also relevant and informative to mention that the taking and keeping of finger prints are strictly regulated even in criminal procedure. (Refer Section 37 of the Criminal Procedure Act (No. 51 of 1977)). In our opinion the arbitrary requirement by an employer that you should have your fingerprints taken is inappropriate.

By Ettiene Pio

Question

I am a senior manager and my contract of employment prohibits me from being a member of a trade union.  How valid is this contractual prohibition?

Answer

Any contractual provision which is against a law is invalid and if such a provision also contravenes the Constitution of our country, it is unconstitutional as well.  Article 18 of the Constitution determines that everyone has the right to freedom of association and in chapter 2 of the Labour Relations Act the right of freedom of association is also ensured in detail.

Briefly, the right of freedom of association includes the right to: participate in the founding of a trade union; become a member of a trade union; participate in legal trade union activities; to participate in elections and to make yourself available for election as a trade union office bearer or official.

A senior manager is still an employee and definitely has the unrestricted right to join a trade union despite the explicit prohibition in his contract of employment.  Therefore, the prohibitive provision in the contract is illegal, unconstitutional and invalid.

However, each employee and specifically senior management also has confidentiality and contractual duties towards the employer.  When using your right to freedom of association, make sure that you do not make yourself guilty of a breach of contract or confidentially. The danger of this can, for example, especially lie in a situation where a senior manager wants to participate in wage negotiations as both a representative of the employer and as a trade union shop steward, or when confidential information is made available to trade union shop stewards which they may not obtain otherwise.  The right to freedom of association does not, therefore, exempt an employee from complying with fiducial and contractual obligations.   A senior manager may thus face disciplinary action if her behaviour as a member of a trade union amounts to a breach of fiduciary and contractual obligations.

Conclusion: Senior managers are welcome to join Solidarity as a trade union for individual and collective protection.  But be careful; once such a person accepts a position of leadership as a trade union shop steward or office bearer, his behaviour should still meet his fiducial and contractual obligations to the employer.

In order to answer the question, one should look at section 39 of the Basic Conditions of Employment Act. If an employee lives on the employer’s premises and the contract of employment is terminated by either of the parties, accommodation must be provided for another month or until the contract terminates in terms of section 37 of the Basic Conditions of Employment Act. I should also mention that section 38, which deals with payment instead of notice, should also be taken into consideration. If the employer does not want you to work the notice, your salary for the notice period must be paid to you.

By Paul Mardon

Question

My employer has a contract with a transport company to transport employees to and from work by bus for free. Should the bus, for example, be involved in an accident while transporting employees to work, would the injuries they sustain during the accident be regarded as injuries on duty ?

Answer

Section 22(1) of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) states that if an employee has an accident resulting in his disablement or death, then the employee or the dependents of the employee will, subject to the provisions of the Act, be entitled to the benefits provided for and prescribed in the Act, in other words, such injury or death will be regarded as an occupational injury.

Section 22(5) of the Act further stipulates that the transport of an employee free of charge to or from his workplace for the purposes of his employment will be deemed to take place in the course of the employee’s employment, if the vehicle specially provided by his employer for the purpose of such transport is driven by the employer himself or one of his employees.

The Act defines ‘accident’ as an accident arising out of and in the course of an employee’s employment and resulting in a personal injury or a disease or the death of the employee.

In general, transport to and from work does not qualify as part of an employee’s employment and an employee’s injury or death during such transport will not be regarded as an occupational injury. Section 22(5) does provide an exception to this general principle, but two conditions must be met, namely:
• the transport must be provided to the employee by the employee free of charge; and
• the vehicle specifically provided for that purpose must be driven by the employer himself or one of his employees.

Therefore, if an employer has a contract with a transport company to convey his employees to and from the workplace, injuries that occur during such transportation will not be regarded as occupational injuries, even if the transport is provided to the employees free of charge, as the vehicle is driven by a driver of the transport company and not by the employer himself or one of his employees specifically appointed for that purpose.

 

Disputes regarding refusal to carry out reasonable instructions are fairly common. In most of these disputes it is found that dismissal was fair. However, what is the position when an employee who refused to carry out an unlawful instruction is dismissed?

The Labour Court recently heard such a case. The employee concerned was a managing director who refused to summarily dismiss two subordinates at the instruction of the chief executive officer (CEO). She was prepared to hold a disciplinary hearing for the two employees, but the CEO insisted on immediate dismissal. When the employees still refused to dismiss them, she was dismissed.

The court came to the conclusion that the instruction that had been given to the employee to dismiss the two employees without a disciplinary hearing was unlawful, as the employees were entitled to a disciplinary hearing before dismissal could be procedurally fair. Employers cannot expect employees to perform an unlawful action. This prohibition is set out in section 5(2)(c)(iv) of the Labour Relations Act, according to which an employee or jobseeker may not be prejudiced for failure or refusal to do something that an employer may not lawfully permit or require an employee to do.

If an employer dismisses an employee on the basis of a reason set out in section 5, such dismissal is deemed automatically unfair in terms of section 187(1). In the case described above, the court ruled that the dismissal had been automatically unfair and awarded the employee compensation.

Unlawful or unreasonable instructions can take on various forms and each case will be judged on merit. Instructions to commit an offence, non-compliance with legislation and instructions to work in an unsafe or hazardous workplace or to carry out an unsafe or hazardous task are just a few examples of unlawful or unreasonable instructions. These cases will not be strictly regarded as unlawful or unreasonable instructions by the courts. After all, police officials cannot refuse to work if they are pelted with stones during unrests. A miner can refuse to work underground in an unsafe area, but the situation changes if that miner is part of a proto team who have to go and rescue miners who are trapped underground. An instruction to assault a colleague or to steal something is clearly not a lawful instruction and to assert that you carried out an instruction will not count as a defence in a criminal court.

An instruction to perform tasks that do not form part of an employee’s job description is not necessarily unreasonable. The court has previously ruled that the instruction to employees to operate two machines instead of one was not an unreasonable instruction. It is therefore crucial to not refuse to carry out an instruction right away and to get advice immediately, or to carry out the instruction, but to get advice and lodge a grievance.

The following factors must be taken into account to determine if an instruction is unlawful or unreasonable:
- Is the action following the instruction prohibited by legislation or common law?
- Is the action following the instruction regarded as being against good morals or against the public interest?
- Is the instruction issued in an emergency?
- Is the action following the instruction regarded as part of your job functions?
- If the action following the instruction is not part of your normal job functions, how far removed is it from your normal functions?
- Does the instruction promote the employer’s business without placing an undue burden on the employee?

An objective test must be applied to determine whether or not an instruction is unlawful or unreasonable.

Solidarity can offer its members advice on what to do in a specific situation. The golden rule is to contact your trade union for advice before refusing to carry out an instruction.

Question

I am a manager at my work and my empoyer indirectly obliges me to dismiss employees appointed under me for trivialities. Can they require me to do so and what would happen if I was dismissed for refusing?

Answer

This dispute shows many similarities with the case of Harding v Petzetakis Africa (Pty) Ltd (2012) 33 ILJ 876 (LC). In this case Ms Harding alleged that she had been automatically and unfairly dismissed because she had refused to dismiss certain subordinates when instructed to do so by the chief executive officer. The employer alleged that she had not been dismissed for the reasons supplied in her version, but because she had been incapable of doing her job.

However, the court accepted  Harding’s account and confirmed that she, on consideration of probabilities, could prove that the employer did dismiss her based on her refusal. She also proved that the employer drew the line immediately after she objected when the chief executive officer gave her the instruction and not, as alledged by the employer, after she refused to carry out the instruction. The employer’s argument that Harding was a senior manager and therefore had to carry out all instructions wal also invalid since the chief executive officer’s instruction was illegal. The court awarded 13 months’ salary  to Harding.

Therefore, it is clear that your employer cannot force you to dismiss someone. Dismissal based on this kind of refusal is likely to be unfair automatically. We would therefore advise you to contact Solidarity as soon as possible if you find yourself in this situation.

The consequences of trauma

Trauma refers to a wound or an injury to the human body caused by some form of power or violence impacting on the body. In Solidarity’s division dealing with injuries on duty, cases are often encountered of members who sustained injury or contracted disease as a result of severe trauma in the workplace, and for this reason more information is given about trauma:

General factors

The forces and violence that can cause trauma include, among others, the following:

Physical factors:
Mechanical trauma (blunt or sharp force trauma, caused by, among others, firearms, bombs, explosives), thermal trauma (heat and cold), electrical trauma, barotrauma (air pressure), trauma caused by high energy and high frequency radiation, as well as ultra sound trauma.

Chemicals:

Trauma can be caused in such cases where the body comes into external contact with chemicals and where chemicals are ingested through the mouth, the respiratory tract and lungs, through the skin, via the muscles and through intravenous injection or absorption through the rectum.

Cause or environment:
From the table it can be seen that the same type of trauma/injury can originate from a specific environment or can arise from or may be caused by several events:

Event/EnvironmentInjury	Traffic	Murder	Sports fields	Water	Heights	Industry	Agriculture
Blunt force	X	X	X			X	X
Sharp force	X	X		X	X	X
Heat/cold			X	X	X	X
Barotrauma
Radiation						X
Chemical agents		X				X	X

Another example of how several causes can affect a specific system is found when the body’s enzyme system is affected. The changes brought about by the various factors are as follows:

• Heat: destroys enzymes through denaturation
• Cold: delays response
• Cyanide, H20, CO2: inhibit respiratory enzymes
• Heavy metals compound with the SH group
• Organophosphates: Destroy the enzymes present in the central nervous system, particularly the nerves in muscles, tissues and red blood cells.
• Fluoride and formaldehyde: respectively inhibit and destroy enzymes in general.

Question

May an employer terminate a signed, valid contract of employment, even if the employee has not yet taken up the position?

Answer

An employee is protected by labour legislation and judgments from the moment that a contract of employment is concluded, even if he or she has not yet physically begun to work for the employer.

In the case Wyeth (Pty) Ltd vs Manqele Mr Manqele was offered a position as a sales representative. The parties entered into a service contract in terms of which Manqele would start working on 1 April. However, before Manqele could do this he was informed by the employer that it was no longer prepared to employ him. Manqele referred the matter to the Commission for Conciliation, Mediation and Arbitration, where the commissioner found that he became an employee the moment he accepted the employer’s offer of employment.

The employer subsequently took the matter to the Labour Court on review. The Labour Court, on hearing the review application, confirmed that Manqele was a party to a valid contract of employment and therefore was an employee for the purposes of the Labour Relations Act.

The employer then took the matter to the Appeal Court. The court once more confirmed that Manqele became an employee the moment he signed the contract of employment.

An employer therefore cannot simply terminate a valid contract of employment, even if the employee has not yet physically taken up the position in question. This rule also applies to verbal agreements.

Question:

May an employer terminate a valid, signed contract of employment if the employee has not started working there yet?

Answer:

An employee is protected by labour legislation and case law from the moment a contract of employment has been signed, even if he or she has not yet physically started working for the employer.

In the case Wyeth SA (Pty) Ltd v Manqele, Mr Manqele had been offered a post as sales representative. The parties signed a contract of employment stipulating that Mr Manquele’s employment would commence on 1 April. Before Manquele started working there the employer informed him that they were no longer willing to employ him. Manquele referred the matter to the Commission for Conciliation, Mediation and Arbitration and the arbitrator ruled that he had become an employee the moment he accepted the employer’s offer of employment.

The employer took the arbitrator’s decision to the Labour Court on review. In the hearing of the review application the Labour Court confirmed that Manquele was a party to a valid contract of employment and therefore was an employee for purposes of the Labour Relations Act.

The employer then referred the matter to the Court of Appeal. This court confirmed that Manqele became an employee from the moment he had been contracted.

Therefore, an employer may not simply terminate a valid contract of employment, even if the employee has not yet physically started working for the employer. This rule also applies to verbal agreements.

By Johan Böning

Question

Are you concerned about measures to control smoking in your place of work?

Answer

Section 24 of the Constitution of the Republic of South Africa (No. 108 of 1996) determines that everyone has the right to an environment that is not harmful to their health and, in accordance with the Occupational Health and Safety Act (No. 85 of 1993) as well as the Tobacco Products Control Amendment Act (No. 83 of 1993) and other relevant regulations, all employers, owners, tenants or any person in control of a public place are morally and legally compelled to create a healthy and safe environment for those working there or making use of such premises.

The Tobacco Products Control Act (No. 83 of 1993) with amendments, among other things, determines the following:

Section 2 (1) (a) (i) en (ii)

The smoking of tobacco products in any public place, or in an area within a prescribed distance from a window, ventilation shaft, door opening or entrance to a public place is prohibited. A public place means any indoor or partially enclosed area (therefore including corridors, balconies, covered patios, et cetera) open to the public and that includes workplaces and public transport.

A workplace means any indoor or enclosed area in which employees perform the duties of their employment, including any corridor, lobby, stairwell et cetera as well as any other area frequented by such employees during the course of their employment. Private dwellings and designated smoking rooms are excluded.

Section 2(2)

The owner of or person in control of the above public place or area, or the employer in respect of a workplace, must ensure that no one smokes there.

Section 2(4)

Section 2(4) of the Tobacco Products Control Act determines that the owner of, or person in control of a public place, or employer in respect of a workplace, must display the prescribed signs and make the prescribed public announcements in order to inform any person who enters or who is in such place or area of any prohibition on smoking.

Section 2(5)

An employer must ensure that:

• employees may object to smoking in the workplace without retaliation of any kind; and
• employees who do not want to be exposed to tobacco smoke in the workplace are not exposed to it. Under section 2(1)(b) of the Tobacco Products Control Act, smoking may be permitted in certain designated areas of a workplace, subject to certain prescribed conditions. The conditions that a designated smoking area should comply with, are the following:
  - Although such a smoking area permits smokers to smoke at work, care should be taken that non-smokers are protected against tobacco smoke.
  - The smoking area may not comprise more than 25% of the total floor space of the workplace.
  - A solid dividing wall should separate the smoking area from the rest of the workplace and a sign clearly indicating ‘SMOKING AREA’ should be displayed at the entrances.
  - If the smoking area is not outside, it should be ventilated.
  - Regardless of whether the smoking area is outdoors or indoors, the air should be extracted from the smoking area directly and care should be taken that it is not recirculated through any other area of the workplace.
  - The following sign should also be displayed at the entrances to the smoking area: ‘THE SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AS WELL AS TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NON-SMOKERS. FOR HELP TO QUIT SMOKING, PHONE 011 720 3145.’ The two above-mentioned signs should be written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background.
  - All notices demarcating where smoking is permissible and not permissible should be displayed permanently.
  - Signs indicating that smoking is not permissible should also carry the following warning: ‘ANY PERON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE.’
  - No person under the age of 18 years may be present in the smoking area.

Some people may ask: ‘Why so strict?’

Research has shown that up to 90% of all cancers are caused by environmental factors, including lifestyle factors like tobacco smoke. Furthermore, it seems that smoking is the cause of death of one in ten adults worldwide. In South Africa smoking is currently considered to be the second biggest health risk after HIV/Aids since approximately 44 000 people die of smoke-related diseases annually. This obviously places a huge burden on health systems and therefore preventative measures are necessary.

By Rizelle Botha

In National Union of Metalworkers of South-Africa o.b.o. Johnson/Trident Steel Ltd (2013) 22 MEIBC 8.11.3 the following facts were present:

An employee was dismissed after he had admitted guilt on a charge of being under the influence of alcohol at work or during working hours and after he had undergone a breathalyser test. The employer had a zero-tolerance policy regarding this type of offence for safety reasons and all employees had been informed of it.

The commissioner in the matter ruled that if an employer wants to rely on a breathalyser test, he must present other, substantiating evidence as well. The evidence must, among other things, show that the test was carried out in the approved manner and that the result of the test was correct. The employer can also call witnesses to testify that they were present when the test was being carried out.

In the case in question, the employee admitted that he had been drinking, the employer had carried out a valid and proper test and other employees had been dismissed for similar offences in the past.

The commissioner subsequently ruled that the employee’s dismissal had been fair.

By Danie van Graan

The problem constantly arises that a person receives a job offer, but before he/she physically commences working, he/she is informed that the job is no longer available. The question now arises as to whether such a person is deemed to be an employee and therefore enjoys protection at the respective labour forums.

According to section 213 of the Labour Relations Act (No. 66 of 1995) an employee is:

‘(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive any remuneration; and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer…’.

From this definition it would seem that a person only becomes an employee when he/she start working for the employer.

Verdicts to the contrary do however exist. In Solidarity obo Nortje v. Lydenburg Works 2009 7 BALR 673 Nortje had accepted a job offer, but before he physically commenced working, the employer terminated the contract on the grounds that Nortje had not yet repaid outstanding monies emanating from a previous work relationship, to the employer. The commissioner found that the service relationship commenced immediately after the contract was finalised, and that Nortje therefore was an employee.

In Wyeth SA (Pty) Ltd v Manqele and Others 2005 6 BLLR 523 Manqele was also fired after he had accepted the job offer but prior to his starting to work, as Mandela had made a misrepresentation regarding his company vehicle. Here the court also found that Manqele was deemed to be an employee from the moment that the contract was finalised.

It would therefore appear that the courts follow a broad interpretation regarding the definition of an employee. This is also in line with section 23 of the Constitution of the Republic of South Africa (No. 108 of 1996), which, among other things, determines that everyone has the right to fair labour practices.

Many grey areas however still exist regarding the question as to from when someone can be deemed to be an employee. Another example is where a service relationship is based on an illegal contract, as in the case of illegal immigrants or sex workers. Are they protected as employees, especially in the light of section 23 of the Constitution, as mentioned above?

You are welcome to contact us should you be in doubt as to whether you qualify as an employee.

 

Question:
I have resigned from my job and given notice. What must I do if my employer does not want me to work during the notice period?

Answer:
In this case, the employer must pay the employee remuneration in accordance with section 38 of the Basic Conditions of Employment Act.

If the employer refuses to pay the mentioned remuneration, the employee can lodge a complaint with the Department of Labour. The employee must provide the Department with the following information and documents:
•     A synopsis of the matter;
•     payslips; and
•     any correspondence regarding the matter between the employee and the employer, as well as the letter of resignation.

Furthermore, the employee must be willing to work during the notice period, regardless of whether the employer wants to let him/her go with immediate effect. On the other hand, the employee cannot lodge a complaint when he/she wants to stop working with immediate effect.

Question:
I work at a guesthouse in Piet Retief and live on the premises. My duties include, among other things, receiving and booking in the guests, preparing breakfast, cleaning the rooms and making the beds. Although I can perform administrative tasks, my employer seldom lets me do admin. My problem is that I injured my lower back when I was younger and as a result of this injury I can’t get out of bed some days. Can my employer dismiss me because of this?

Answer:
Disability owing to ill health or injury can be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer must investigate the extent of the illness or injury.

If the employee will be absent from work for an unreasonably long period, the employer must look into all possible alternatives, except dismissal, such as appointing a temporary substitute for the incapacitated employee

Question:

I would appreciate it if you could explain the following cases, and put them into perspective:

1. In 2000 I have been diagnosed with major depression or MD, arising from underperformance at work. I am under the impression that there has been a court ruling that in certain circumstances classify depression as an injury on duty. Is this true?
2. If this is the case, what are the processes necessary to submit such an injury to the Workmen’s Compensation Commissioner? My assumption is that it would be more complex than in the case of a physical or visible injury.I am currently working as a technical manager in the signal distribution environment with a staff of 14. As the signal distribution is done 24 hours per day for 365 days of the year and it is expected of me to be telephonically available 24 hours a day. 

   When many network errors occur, it has a very detrimental effect on my sleeping patterns and my daily functioning as a manager.

   There are escalation and follow-up procedures that I have to handle, irrespective of the time of day or night.

   This again has a negative effect on my state of depression, as I do not get sufficient sleep and the fact that I cannot use certain prescribed antidepressants, because I get sleepy when using them.

   It is therefore important to get clarity concerning these questions.

 Answer:

When reporting any occupational injury or disease the following three factors are very important:

1. The diagnosis of the doctor.
2. The cause of the casualty or disease.
3. Has the condition been reported to the employer and the Compensation  Commissioner in terms of the provisions of the Compensation for Occupational Injuries and Diseases Act (No 130 of 1993)?

 

1. The diagnosis:
   Occupational diseases are contained in Schedule 3 of the Act and although post-traumatic stress syndrome is an acknowledged occupational disease, it does not apply to MD.The diagnosis of the disease therefore is very important.

   There have been very important court rulings about the matter in 2005 and in the case of Urquhart v Compensation Commissioner post-traumatic stress has been accepted as an occupational disease that could develop because of exposure to excessive trauma.

   The difference between major depression and post-traumatic stress are especially found in the cause of the diseases.

   MD is the most common mental illness worldwide and is regarded as a condition caused by a chemical imbalance in the brain and as there are persons inclined to heart diseases this is also true for MD.

   In contrast PTSD is the result of exposure to severe trauma that is of a life-threatening nature.

   The American Psychiatric Association established the DSM IV-criteria, with at least seven requirements that have to be met before PTSD could be diagnosed.   

   The following two should both be present and form the basis for the other five requirements:

   Exposure to a traumatic event/s including:
   a)         experience of, or confrontation with a life-threatening or serious physical injury, bodily threat
               against own or other’s person, AND
   b)         reaction to it which includes intense fear, helplessness or shock. 

2. The cause:“Accident” is described in the Act as follows: “an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee”.

   The relevant disease should have a direct relation to and has to be the result of and should have developed from the employer’s occupation.

   Occupations exposed to violence include the SAPS, emergency and health workers, security officers, etc.

   However PTSD is not only limited to these occupations and it was granted that PTSD also is an occupational disease that could develop in the course of time.

   The applicant was a photographer who during the course of years often photographed violent scenes and who has on occasion been physically attacked.

3. Reporting:The prescribed procedure in terms of the Act requires that the employee should report an occupational disease as soon as possible after commencement of the disease to the employer.

   He may also report it to the Compensation Commissioner.

   The employer is obliged to report it to the Commissioner within 14 days, irrespective of whether he agrees that it is an occupational disease.

   The right to claim lapses should the employee fail to report the disease to the employer or Commissioner within 12 months of the diagnosis.

   Conclusion: As the diagnosis is that of depression and it has already been diagnosed in 2000, the person who posed the question will in terms of the Act unfortunately not qualify for benefits.

   The cause of the depression, namely underperformance, in my opinion does not comply with the definition as required by the Act.

By Johan Roos

According to section 26 of the Basic Conditions of Employment Act, no employer may require or permit an employee to work under conditions which may pose a danger to the unborn child or to a woman who is nursing her child. During this time the employer must offer suitable, alternative employment to the employee for a minimum period of six months after the birth of the child.

Question:

I am currently employed as a welder but experience a severe condition of rheumatism with the result that I cannot always use my hands properly. Can the employer simply dismiss me?

Answer:

Disability can be temporary or permanent. If temporary, the employer should do a thorough check-up of the disability. If permanently disabled the employer should investigate the possibility of alternative employment or adapt the duties or working conditions of the employee in order to accommodate the employee’s disability.

The employee should have the opportunity of a fair hearing and to be assisted by a trade union representative or fellow employee.

The following should be considered to determine whether the dismissal, if appropriate, is fair:

1. Is the employee able to work or not?
2. Extent to which the employee is able to work;
3. Extent to which the employee’s working condition can be adjusted in order to accommodate the disability, and
4. Adjustment of the employee’s duties.

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

• The employer must determine whether or not the employee is capable of performing his duties.
• The employer must determine for how long the employee will be absent from work owing to illness.
• The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
• The employer must establish whether or not the employee can be reassigned.

By Paul Mardon

Question

My employer has a contract with a transport company to transport employees to and from work by bus for free. Should the bus, for example, be involved in an accident while transporting employees to work, would the injuries they sustain during the accident be regarded as injuries on duty ?

Answer

Section 22(1) of the Compensation for Occupational Injuries and Diseases Act (No. 130 of 1993) states that if an employee has an accident resulting in his disablement or death, then the employee or the dependents of the employee will, subject to the provisions of the Act, be entitled to the benefits provided for and prescribed in the Act, in other words, such injury or death will be regarded as an occupational injury.

Section 22(5) of the Act further stipulates that the transport of an employee free of charge to or from his workplace for the purposes of his employment will be deemed to take place in the course of the employee’s employment, if the vehicle specially provided by his employer for the purpose of such transport is driven by the employer himself or one of his employees.

The Act defines ‘accident’ as an accident arising out of and in the course of an employee’s employment and resulting in a personal injury or a disease or the death of the employee.

In general, transport to and from work does not qualify as part of an employee’s employment and an employee’s injury or death during such transport will not be regarded as an occupational injury. Section 22(5) does provide an exception to this general principle, but two conditions must be met, namely:
• the transport must be provided to the employee by the employee free of charge; and
• the vehicle specifically provided for that purpose must be driven by the employer himself or one of his employees.

Therefore, if an employer has a contract with a transport company to convey his employees to and from the workplace, injuries that occur during such transportation will not be regarded as occupational injuries, even if the transport is provided to the employees free of charge, as the vehicle is driven by a driver of the transport company and not by the employer himself or one of his employees specifically appointed for that purpose.

 

By Nikki Prinsloo

Today we look at the General Safety Regulations (Regulations (3)(1)-(4))  of the Occupational Health and Safety Act (Act 85 of 1993).

When must first aid be applied in the workplace?

The General Safety Regulations (regulation (3)(1)) compel an employer to ensure that all employees in the workplace receive first-aid treatment fast in the event of emergencies or injuries in the workplace.

When must a first-aid worker be appointed in the workplace?

The General Safety Regulations (regulation (3)(4)) stipulate that – the employer is obliged to appoint a first-aid worker in writing if more than 10 employees are employed in a workplace. The first-aid worker must be readily available to apply first aid during normal working hours in the event of an emergency.

What must the ratio of first-aid workers to employees be in the workplace?

The General Safety Regulations (regulation (3)(4)) stipulate that in the case of shops and offices there should be one first-aid worker for every 100 employees. The requirement for other workplaces is one first-aid worker for every 50 workers.

The competence of a first-aid worker

The General Safety Regulations (regulation (3)(4)) of the Occupational Health and Safety Act stipulate that a first-aid worker must have a valid certificate of competence in first aid issued by one the following bodies:

(A) The South African Red Cross Society (B) The St John’s Foundation (C)The South African First Aid League (D) A person or organisation approved by the chief inspector for this purpose

By Leigh McMaster

Question:

Should employers be held accountable for health and safety at their operations?

Answer:

Yes, all employers should be held accountable for health and safety at their operations. Ensuring healthy and safe workplaces is part of the mining industry’s social licence to mine.

Take for example the compensation battle that looms in the gold mining industry. The Mankayi v. AngloGoldAshanti case, where a landmark ruling was given in 2011, has set the precedent for a possible class action lawsuit against some 30 gold mining companies. Harmful exposure to silica dust in the South African gold mining industry has been a major risk for employees over decades of mining. The prevalence of silicosis among former and current mineworkers has been very difficult to establish, however. A 2009 report from the Health Systems Trust which evaluated various research reports suggested that the prevalence of silicosis among former employees may be between 20% and 30%. The potential number of claimants may therefore be substantial, taking into account the employment figures of the gold industry over the last eight decades.

Richard Spoor, a human rights activist and attorney, has moved to file a class action suit against more than 30 gold companies on behalf of 17 000 former miners who say they contracted silicosis, a debilitating lung disease, due to negligence in health and safety. The companies include third-largest global bullion producer AngloGold Ashanti, fourth-largest bullion producer Gold Fields and Harmony Gold. Spoor filed the application to bring a class action with the High Court in December 2012 and expects the matter to be heard in May 2013. Due to various factors it is still unclear what the extent of the claims for damages will be, but the claims will undoubtedly have a significant impact on the financial sustainability of the industry.

Solidarity is of the opinion that former and current employees suffering from occupational lung diseases should be compensated at reasonable levels, which is not the current status quo as a result of the discrepancies in the South African legislation dealing with compensation. The development of a compensation trust fund could be a more sustainable model for delivering reasonable compensation to disabled employees while at the same time ensuring sustainable employment for the current workforce.

Question: What remuneration is an employee entitled to if he works on public holidays or Sundays?

Answer: First, there must be an agreement between the employee and the employer if the employee works on a public holiday or a Sunday. Second, the employee is entitled to double his usual remuneration.   

Question:

What does the law state regarding overtime and work on Sundays? I am a senior financial manager at a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or given any time off.

Answer:

Although the Basic Conditions of Employment Act (Act 75 of 1997) makes provision in Sections 10 and 16 for statutory overtime payment as well as for work done on Sundays, Section 6(1)(a) states that these stipulations do not apply to senior managers.

A senior manager is regarded as an employee who has the authority to appoint and dismiss employees, as well as to represent the employer both internally and externally.

Legal question: Overtime payment for senior managers Phil Davel, Solidarity Legal Services, Service Centre Question: What does the law state regarding overtime and work on Sundays? I am a senior financial manager at a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or given any time off. Answer: Although the Basic Conditions of Employment Act (Act 75 of 1997) makes provision in Sections 10 and 16 for statutory overtime payment as well as for work done on Sundays, Section 6(1)(a) states that these stipulations do not apply to senior managers. A senior manager is regarded as an employee who has the authority to appoint and dismiss employees, as well as to represent the employer both internally and externally. In addition to this stipulation, the Minister of Labour also placed an income threshold on the application of Sections 10 and 16, among others. Government Notice R.100 of number 30720 increased the threshold from R115 572 to R149 736 on 1 February 2008. This means that if an employee earns a salary of more than R149 736 per year, he/she would be excluded from the specific sections in question. In this case, senior managers’ service contracts will determine what remuneration they are entitled to, and also whether overtime payment applies to them and at what rate. Overtime work and work on Sundays are not, however, unlimited for senior managers. Section 48 of the Basic Conditions of Employment Act prohibits forced labour. The employer cannot, therefore, force the employee to do any labour. The merits of the case will determine if the required labour is in fact forced labour. Therefore, in answer to the legal question: The financial manager needs to realise that he/she may be expected to work overtime without payment, provided that it does not constitute forced labour. This is because his/her remuneration package already makes provision for overtime and also because the Act excludes him/her from the required payment for overtime and for work on Sundays. For more information regarding remuneration and overtime, please call Solidarity’s legal experts on 0861 25 24 23.

Question: How much should I be paid for working on a public holiday?

Answer: An employee who works on a public holiday must receive normal payment for the day. However, if the employee does not normally work on public holidays, he must be paid double the normal rate.

Question: How does payment on Sundays work?

Answer: In cases where an employee is expected to work on a Sunday, the employee must receive double payment for the day. This payment is determined by Section 16 of the Basic Conditions of Employment Act. If the employee normally works on a Sunday, payment should be one and a half times the normal rate. An agreement can be reached that the employee will receive time off instead of extra payment.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
How does overtime payment work?

Answer:
If an employee earns less than R149 736 per year and is not in a management position, he/she is entitled to overtime payment. If the employee is in a management position or earns more than R149 736 per year, his/her service contract must be examined to determine whether the person is entitled to overtime payment.
Section 10 of Basic Conditions of Employment determines that an employee may not work more than ten hours of overtime per week unless a collective agreement is in place. If there is such an agreement, the weekly overtime can be increased to 15 hours. The agreement will only be valid for two months. No agreement may oblige an employee to work more than 12 hours overtime per day. Payment for overtime must be made at one and a half times the normal wage. On Sundays, the employee must be remunerated at twice the normal wage. In lieu of extra remuneration, the employee may agree to 30 minutes’ time off for every fully paid hour of overtime worked. The time off must be granted at least one month after the employee became entitled to it.

Question:
If I earn less than 172K, what are my basic rights regarding overtime, among other things?

Reply:
Employees earning less than this amount are fully protected by the Basic Conditions of Service Act.

If the employee earns less than R172 000 a year and is not in a managerial position, he or she is entitled to overtime pay. If the employee is in a management position or earns more than R172 000 a year, that person’s service contract has to be perused to determine whether he or she is entitled to overtime pay.

Sectionl 10 of the Basic Conditions of Service Act determines that an employee may not work more than ten hours’ overtime a week, unless there is a collective agreement to this effect. However, if there is such an agreement, weekly overtime could increase to a maximum of 15 hours a week. The agreement may only be valid for two months. No agreement may oblige an employee to work more than 12 hours a day.

Payment for overtime must take place at one and a half times the usual payment. On Sundays the employee has to be remunerated at twice the usual payment. An agreement can also be reached that, instead of extra payment, the employee gets 30 minutes off for every fully paid hour of overtime worked. The time off must be granted within one month after the employee is entitled to it.

In general an employee can refuse to work more than 45 normal hours a week and 10 hours overtime. Or to work more than 12 hours a day, consisting of nine normal working hours and three overtime hours. However, there are cases such as emergency overtime hours that an employer can expect of an employee. This is usually the case where operational requirements demand it.

Please note that overtime can only be expected of an employee and that an employee can expect overtime payment of an employer if there is an agreement determining that overtime is worked..

Question:
My annual income is far more than R172 000.  My employer informed me that I am compelled to work overtime without payment and to work overtime on Sundays because she believes my salary is so high.  According to her the Basic Conditions of Service Act (BCSA) does not apply to me and she can force me to work free of charge. I did not enter into any agreement to work overtime or on Sundays. Is there any protection for me?

Reply:
The employer is correct that sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) do not apply to such an employee. The reason is, as stated, that the Minister of Labour did not make this applicable to such an employee. The reason is, as stated, that the Minister of Labour fixed a limit (at present an income ceiling of R172 000 a year) in terms of which these sections in Chapter 2 of the Act or any provision relating to it do not apply to employees earning more than this amount.

But the fact that an employee earns above this ceiling, does not entitle the employer to free overtime.

First, the reason why an employer cannot simply enforce overtime is contained in section 48 of the Act.
Section 48: Prohibition of forced labour
1. Subject to the Constitution, all forced labour is prohibited.
2. No person may for his or her own  benefit or for the benefit of someone else cause, demand or impose forced labour in cobravention of subsection 1.
3. A person who contravenes subsection (1) or (2), commits an offence.

Secondly, as far as the arrangement of working hours is concerned, the employer is further compelled to take section 7 of the Act into consideration.

Section 7: Regulation of working time
Each employer must regulate the working time of each employee
1.  In accordance with the provisions of any Act regulating occupational health and safety;
2. with due regard to the health and safety of employees;
3. with due regard to the Code of Good Practice on the Regulation of Working Time issued under section 87 (1)(a); and
4. with due regard to employees’ family responsibilities.

Although an employee can therefore not claim overtime in terms of section 10, an employee is entitled to negotiate. It is therefore important for an employer and employee to agree beforehand on the number of normal hours and the number of overtime hours that will be worked. They must also agree on the tariff for the hours overtime or work on Sundays and this can differ completely from the tariffs mentioned in the BCEA.

In the workplace contracts of service are generally drawn up very broadly and can be interpreted accordingly. Clauses such as:  “The employee hereby agrees to work overtime from time to time, as well as on Sundays and public holidays”, or   “…as the operational requirements demand ”  occur regularly and should be approached with caution.

It is therefore advisable that conditions in a service contract be stated clearly and specifically before it is ratified – particularly as far as overtime terms and work on Sundays are concerned if an employee earns more than the remuneration ceiling.

To summarise, the following:
• If an employee earns more than R172 000 a year, the provisions of sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) do not apply to his of her service contract. This means that both an employer and the employee cannot appeal to it or set demands in terms of these sections.
• The fact that an employee earns more than R172 000 a year, does not automatically compel him or her to work overtime, and vice versa it does not make an employer automatically entitled to overtime.
• The service contract that has been agreed upon will determine what the specific terms and conditions are and therefore it is important that it be drawn up clearly and specifically.
• Even if an employee earns more than R172 000 a year, an employer is still bound to sections 7 en 48 of the Basic Conditions of Service Act.

Answer:

Ordinary working hours are set out in section 12 of the Basic Conditions of Employment Act. In terms of this section, the average number of ordinary hours of work in a week is 45, which comes to nine hours a day for a five-day workweek.

Lunch breaks are not included in ordinary hours of work, as they represent unpaid time. Moreover, an employer and an employee can agree on fewer than 45 hours a week, in which case it is crucial for the agreement to be put in writing.

Any time that is worked over and above 45 hours a week or the agreed number of hours, will be deemed overtime. Section 10 of the Act states that an employer may not require or permit an employee to work overtime, except in accordance with an agreement, or more than 10 hours’ overtime a week. In terms of such an agreement, the weekly overtime may be increased to a maximum of 15 hours. The agreement will apply for two months only. This type of agreement may not require or permit an employee to work more than 12 hours on any day.

By Phil Davel

Question:
What does the law have to say about overtime and working on Sundays? I am a senior financial manager with a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or even given any time off.

Answer:
Although sections 10 and 16 of the Basic Conditions of Service Act (Act 75 of 1997) provide for statutory remuneration for overtime as well as for work done on Sundays, section 6(1)(a) stipulates that these provisions do not apply to senior managers. Senior managers are regarded as employees who have the authority to employ and dismiss other employees as well as to represent the employer internally and externally.

In addition to this stipulation, the Minister of Labour also placed an income limit on the application of, among others, sections 10 and 16. On 13 May 2011 the limit was increased from R149 736 to R172 000 per year by Government Gazette 34287 3. This means that if an employee earns a gross salary of more than R172 000, he/she is excluded from the effects of these specific sections.

In cases like these, the service contracts of senior managers will determine the compensation to which they are contractually entitled and also whether payment for overtime applies to them and at what rate.

However, there are limits to overtime and working on Sundays in the case of senior managers. Section 48 of the same Act prohibits forced labour. An employer therefore cannot force an employee to work. The merits of the case will determine whether the work required is forced labour or not.

The answer to the legal question is therefore that the financial manager should realise that he/she may be required to work overtime without remuneration, provided that this does not amount to forced labour. This is because his/her remuneration package already provides for this and also because the Act excludes him/her from the required remuneration for overtime and working on Sundays.

For further information on remuneration and overtime, feel free to contact Solidarity’s legal experts at 0861 25 24 23.

 

By Phil Davel

Question:
What does the law have to say about overtime and working on Sundays? I am a senior financial manager with a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or even given any time off.

Answer:
Although sections 10 and 16 of the Basic Conditions of Service Act (Act 75 of 1997) provide for statutory remuneration for overtime as well as for work done on Sundays, section 6(1)(a) stipulates that these provisions do not apply to senior managers. Senior managers are regarded as employees who have the authority to employ and dismiss other employees as well as to represent the employer internally and externally.

In addition to this stipulation, the Minister of Labour also placed an income limit on the application of, among others, sections 10 and 16. On 13 May 2011 the limit was increased from R172 000 to R183 008 per year by Government Notice No. R.429 in Government Gazette No. 34287 3. This means that if an employee earns a gross salary of more than R183 008, he/she is excluded from the effects of these specific sections.

In cases like these, the service contracts of senior managers will determine the compensation to which they are contractually entitled and also whether payment for overtime applies to them and at what rate.

However, there are limits to overtime and working on Sundays in the case of senior managers. Section 48 of the same Act prohibits forced labour. An employer therefore cannot force an employee to work. The merits of the case will determine whether the work required is forced labour or not.

The answer to the legal question is therefore that the financial manager should realise that he/she may be required to work overtime without remuneration, provided that there is an agreement and the unpaid overtime consequently does not amount to forced labour. This is because his/her remuneration package already provides for this and also because the Act excludes him/her from the required remuneration for overtime and working on Sundays.

For further information on remuneration and overtime, feel free to contact Solidarity’s legal experts at 0861 25 24 23.

Please note: This is a revision of a previous Legal Question and indicates the new income limit.

Legal question: Paternity Leave By Phil Davel Question: What does the law say about paternity leave? How many days’ leave will I be entitled to take when my child is born? Answer: The Basic Conditions of Employment Act (Act no. 75 of 1997), as amended, includes a provision for family responsibility leave in Section 27. Subsection 27(2)(a) determines that an employee is entitled to family responsibility leave when his or her child is born. Therefore, a father is entitled to family responsibility leave when his child is born. “Paternity leave” is merely a term that is sometimes used to refer to this subsection of the Act, although the Act uses the term “family responsibility leave”. Nothing prohibits an employer from including a special, additional category of leave in the company’s leave policy. Such categories are quite common in the leave policies of foreign companies. An employee who has been employed for at least four months and who works at least four days a week and 24 hours a month for the same employer, may take at least three days of paid family responsibility leave during each leave cycle. Family responsibility leave is granted in the following cases only: 1. When the employee’s child is born or is sick. 2. In the event of the death of the employer’s – – spouse or life partner; – parent, adoptive parent, grandparent; – child, adopted child or grandchild; or – sibling. An employer may request an employee to provide reasonable proof of such an event before the employee is paid. In other words, if the employee’s child is born, a birth certificate and, possibly, proof of paternity should be provided to the employer. An employee may take family responsibility leave for a whole day or part of a day. The leave expires at the end of the annual leave cycle and cannot be accrued. When an employee takes family responsibility leave, he or she must be paid the usual wages for the day(s) in question on the normal payday.

A collective agreement could revise the number of days or the circumstances in which family responsibility leave is granted and an employer may grant more than the required number of days. Such a revision will be set out in the company’s leave policy.

Question: Can my employer deduct money from my salary without my permission?  

Answer: In terms of section 34 of the Basic Conditions of Employment Act an employer may deduct money from an employer’s salary in the following circumstances:  

The only circumstances in which an employer may deduct money in terms of section 34 is when an employee has given his/her permission in writing for the deduction to be made. An employer may also deduct money in accordance with a collective agreement, act, court order or arbitration.

Deductions in respect of damage or loss may only be made with the permission of an employee after a fair procedure has been followed.

Johan Roos

Question:

Dismissal on the grounds of operational requirements is regulated by Section 189 of the Labour Relations Act (Act 66 of 1995), but Section 189 only regulates the procedure in the case of retrenchment and not the relevant payments. As far as the retrenchment package and other payment are concerned, you need to look at the Basic Conditions of Employment Act (Act 75 of 1997) as well as the Labour Relations Act to determine what payment an employee must receive when he/she is retrenched.

Answer:

Section 41 of the Basic Conditions of Employment Act regulates the retrenchment package. In terms of this section, an employee must receive remuneration of one week’s salary for every completed year of service. The minimum requirement is established by labour legislation to give the employee the opportunity to negotiate in order to improve his/her position. The guideline is procedurally summarised in Section 189 of the Labour Relations Act.

Section 40 of the Basic Conditions of Employment Act determines that an employer must pay out any paid time off that has not yet been taken by the employee. This is a payment to which the employee is entitled anyway when employment is terminated.

Section 37 of the Basic Conditions of Employment Act states that if a service contract is terminated, the relevant notice period applies. In the case of dismissal for operational reasons, the employee will also have to give notice as determined by Section 37.

The Basic Conditions of Employment Act states the following:

1. One week’s notice must be given if the employee has been working at the company for less than six weeks;
2. Two weeks’ notice if the employee has been working at the company for more than six weeks; and
3. Four weeks’ notice if the employee has been working at the company for more than a year.

The stipulation in the employee’s service contract regarding the notice period must also be considered. Of course, an agreement can be reached that the employee does not have to work a notice period. In such a case, the employer will pay out the notice period instead of the employee having to work the notice period.

For further information about severance packages and retrenchments, please call Solidarity’s legal experts at 0861 25 24 23.

Legal question: Overtime payment for senior managers Phil Davel, Solidarity Legal Services, Service Centre Question: What does the law state regarding overtime and work on Sundays? I am a senior financial manager at a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or given any time off. Answer: Although the Basic Conditions of Employment Act (Act 75 of 1997) makes provision in Sections 10 and 16 for statutory overtime payment as well as for work done on Sundays, Section 6(1)(a) states that these stipulations do not apply to senior managers. A senior manager is regarded as an employee who has the authority to appoint and dismiss employees, as well as to represent the employer both internally and externally. In addition to this stipulation, the Minister of Labour also placed an income threshold on the application of Sections 10 and 16, among others. Government Notice R.100 of number 30720 increased the threshold from R115 572 to R149 736 on 1 February 2008. This means that if an employee earns a salary of more than R149 736 per year, he/she would be excluded from the specific sections in question. In this case, senior managers’ service contracts will determine what remuneration they are entitled to, and also whether overtime payment applies to them and at what rate. Overtime work and work on Sundays are not, however, unlimited for senior managers. Section 48 of the Basic Conditions of Employment Act prohibits forced labour. The employer cannot, therefore, force the employee to do any labour. The merits of the case will determine if the required labour is in fact forced labour. Therefore, in answer to the legal question: The financial manager needs to realise that he/she may be expected to work overtime without payment, provided that it does not constitute forced labour. This is because his/her remuneration package already makes provision for overtime and also because the Act excludes him/her from the required payment for overtime and for work on Sundays. For more information regarding remuneration and overtime, please call Solidarity’s legal experts on 0861 25 24 23.

Question: How much should I be paid for working on a public holiday?

Answer: An employee who works on a public holiday must receive normal payment for the day. However, if the employee does not normally work on public holidays, he must be paid double the normal rate.

Question: How does payment on Sundays work?

Answer: In cases where an employee is expected to work on a Sunday, the employee must receive double payment for the day. This payment is determined by Section 16 of the Basic Conditions of Employment Act. If the employee normally works on a Sunday, payment should be one and a half times the normal rate. An agreement can be reached that the employee will receive time off instead of extra payment.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
My employer has asked me to work on a public holiday. Am I obliged to work and what payment does the law prescribe for such work?

Answer:
No employer may force an employee to work on a public holiday, unless a prior agreement between the employer and the employee contains a different stipulation. An employee who does not work on a public holiday must receive his/her normal salary for the day. If the employee does work on a public holiday, he/she must receive double his/her normal payment.
How about payment on Sundays?
In terms of Section 16 of the Basic Conditions of Employment Act, an employee must be paid double his/her normal salary for working on a Sunday. However, if the employee does normally work on a Sunday, he/she must be paid one and a half times his/her normal salary. The employer and employee may, however, reach an agreement that the employee will get extra leave instead of extra payment.

Question:

My date of appointment is 01/10/2004 and from that date I have not earned any pension. In December 2005 I brought it to the attention of the new manager and he immediately referred it to our head office, where it has been corrected from December 2005 without taking the previous year into account. Am I entitled to the interest on that pension?

Answer:

The employee has to refer to his service contract to determine whether the employer has to contribute to his pension.

If the contract states that the employer should contribute to his pension, the employer should make a retroactive payment.

Phil Davel

Question: I was appointed in a temporary position at a private school for the last two terms of the year. My salary is R7 000 per month, before deductions. The teacher who occupied this position before me was only paid until the start of the July holiday. So, despite having rendered years of service to the school, the principal only paid her until the last day of school. I think that this will happen to me as well, and I would like to know what the law says in this regard.

Answer: According to your e-mail, you were only appointed for the last two terms. This means that your employment contract is linked to a fixed term. Therefore, on the last day of the last school term your employment contract automatically comes to an end. Consequently, unless stipulated otherwise, neither of the parties to the employment contract needs to give the other notice of termination of service. Both parties are already aware of it and have agreed on when the employment period will end.

You will only be entitled to payment as calculated in terms of section 35 of the Basic Conditions of Employment Act (Act 75 of 1997) and as agreed in the employment contract (whether in writing or verbally). In other words, years of service do not come into play. The number of years of service only becomes a statutory factor with severance packages in terms of section 41(2) of the same Act. It only applies in two cases: In the case of dismissal due to operational requirements (retrenchments) or if the employment contract is terminated in terms of section 38 of the Insolvency Act (Act 24 of 1936) (liquidations). In other words, when you reach the end of your fixed period of employment, a severance package is not payable.

We are not aware of the terms of your predecessor’s employment contract, but it appears that, as in your case, the contract also automatically ran out on the last day of the term.

Upon termination of your service you will, therefore, only be entitled to the following: your agreed monthly salary, any overtime worked in terms of the agreement, your outstanding leave days and any other money owed to you in terms of legislation or an agreement.

Question:
I have a problem with my employer. We have an agreement that my salary will be paid in in time for my debit orders to be deducted at the end of the month. April was the umpteenth time that my salary was not available in time for my debit orders to be deducted. The last time that my salary was not paid in timeously I requested a meeting with my employer so that we could discuss the matter. What can I do?

Answer:
The Basic Conditions of Employment Act (Act 75 of 1997) stipulates in Section 32(3)(a) that the employer must pay your salary or wages within seven days after the end of the period in respect of which it was payable. This means that the Act grants the employer seven days’ respite after the pay date agreed upon to pay his employees’ remuneration. If, however, this is not done, the next step would be to lodge an internal grievance against the employer. This can be followed by a letter of demand to your employer. When all the internal steps have been exhausted you must contact the Department of Labour because your employer fails to pay in salaries within the appointed time. Regarding the costs such as bank charges and interest that you unnecessarily incurred as a result of the employer’s neglect, you can bring a claim for damages against the employer if you can prove the damages. Depending on the amount, the correct forum will be either the small-claims court or the magistrate’s court. A further point of advice is that, should the empoloyer make a habit of not paying your salary in time, you could move the deduction date of your debit orders to the seventh or even the tenth day of each month. This would only be a positive step to protect yourself even further.

If there are any further questions regarding the late payment of salaries, feel free to call the legal experts at Solidarity’s call centre on 0861 25 24 23.

 

 

By Phil Davel

Answer:

On terminating his service your husband will be entitled to the following remuneration:

- His agreed monthly salary as calculated in terms of section 35 of the Basic Conditions of Service Act (Act 75 of 1997) and as agreed in his employment contract (whether in writing or verbally);
- any overtime worked in terms of an agreement;
- his outstanding leave; and
- any other moneys owing to him in terms of an agreement or legislation.

It is also advisable to, on voluntary termination of service, take note of among others the following: Should your husband decide to resign, take into account the agreed period of notice as stated in the employment contract. The employer may not demand that he work a longer notice period. If no agreement was entered into concerning the notice period, or should the company’s policy not contain a stipulation in this regard, the normal regulation regarding notice periods as contained in section 37 of the Act will apply. The employment contract also needs to be reviewed to see if it has a prohibition of competition clause. This aspect will be of importance, especially if your husband intends to enter the employ of a similar employer in the same industry. A prohibition of competition clause can, among others, stipulate that your husband may, for a certain period and within a certain radius, not work for the competition.

Answered by Phil Davel, Solidarity Legal Services, Service Centre

Answer:

Definition of a bonus: A bonus is a remuneration and is described in Chapter 1 of the Basic Conditions of Service, Act 75 of 1997 (as amended) as: “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and ‘remunerate’ has a corresponding meaning”. It is an extra payment in addition to someone’s normal wage and overtime for good performance of targets attained.
Bonuses are discretionary:
In general it is firstly important to understand that there are no legal conditions in the Labour Law which determine or regulate the payment of bonuses; it is a matter of agreement between the employer and employee and therefore a contractual matter rather than a labour law issue. It therefore follows that if your employer is currently not paying out any bonuses of any nature, it remains discretionary. Bonuses are seldom guaranteed and it would not be expedient to expect this discretionary benefit because bonuses were paid out the previous year. Most service contracts contain conditions which indicate that bonuses are paid at the sole discretion of the employer.
Three basic kinds of bonuses
• The 13th cheque or Christmas bonus: This bonus is usually paid at the end of the year and is a form of acknowledgement and appreciation for excellent service rendered.
• Performance bonus: A performance bonus is paid for good performance and could be a non-recurrent amount which is shared among employees or be based on a percentage of an employee’s salary of wage.
• Production bonus: This kind of bonus is output and target driven and not based solely on company standards. For example the output/production of at least 100 units per employee per month meets a specific quality.
When can an employer be expected to pay out bonuses?
Whether a bonus is payable or not mainly depends on three factors:
1. The terms and conditions of an individual service contract or collective agreement. Where payment of bonuses for example is a 13th cheque is a substantial condition of a contract and is guaranteed, the bonus has to be paid out.
2. The company policy with regards to bonuses. (Note that in these two cases employers usually include exclusion clauses and conditions in their contracts and policies. Examples are the attainment of pre-determined objectives or a specific gross profit margin).
3. The third factor is especially problematic. If an employer has consistently paid out bonuses in the past and has created a substantial expectation with employees that has become an existing “habit and use”, employees have obtained a common-law right that could entitle them to an annual bonus. The problem is that employees sometimes budget for the bonus because of this expectation and it could be unfair if the expected bonus is not paid out. Because the employees have developed a strong right of expectation, it could be strengthened even further if the non-payment of bonuses (due to say a poor trade return) is not communicated to employees well in advance and in time. Although the right of expectation does not constitute an absolute right to claim a bonus, it creates a right to be consulted in advance before the employer decides not to pay out bonuses. Anything from three to six months is a fair period.
What can be done if compulsory bonuses are not paid out?
A unilateral decision not to pay out bonuses could mean breach of contract where an employee could claim damages or even claim for specific compliance in a civil suit (which will in most instances be the case). In terms of section 77(3) of the Act the labour courts enjoy concurrent jurisdiction with civil courts with regard to service contracts and the matter could be referred to them.
For further information or enquiries about bonuses, phone Solidarity’s service centre on 0861-25-24-23.

Question: Is an annual increase compulsory? Does an employer have to increase his employees’ salaries annually?

Answer: As in the case of bonuses, salary increases are granted at the discretion of the employer, unless such increases are determined and guaranteed according to agreement. The employee is not entitled to a salary increase. The employee may make enquiries and request that the employer adjust the salary structure. Increases linked with the current inflation rate plus 2% are usually sufficient. The inflation rate is currently 5,1%. 

Question: What remuneration is an employee entitled to if he works on public holidays or Sundays?

Answer: First, there must be an agreement between the employee and the employer if the employee works on a public holiday or a Sunday. Second, the employee is entitled to double his usual remuneration.   

Question: I am experiencing problems regarding the payment of my salary. I have an agreement with my employer that my salary will be deposited into my bank account in time for my debit orders at the end of the month. However, my salary was deposited too late for my debit orders in April, which has happened before. The last time this happened, I requested to have a meeting with my employer to discuss the matter. What should I do now?

Legal question answered by Phil Davel, Solidarity Legal Services, Service Centre

Answer: The Basic Conditions of Employment Act, no. 75 of 1997, determines in section 32(3)(a) that employers must pay employees’ salaries/wages within seven days of the period for which the salaries/wages are payable. Therefore, the Act gives employers a grace period of seven days after the agreed date of payment to disburse employees’ salaries.

If your employer does not pay your salary within this grace period, you can lodge an internal grievance against the employer. The grievance can be followed by a prompt note to the employer. Once you have followed all internal procedures, you can contact the Department of Labour, since your employer has failed to disburse salaries within the determined period.

With respect to charges such as bank charges and interest that may have accrued unnecessarily owing to your employer’s failure to pay your salary on the agreed date, you can lodge a claim for damages against your employer, provided that you are able to prove the damages. Depending on the amount involved, the appropriate forum will be the small claims court or the magistrate’s court. If your employer continues to pay your salary late, you can have the date of your debit orders moved to the seventh or even the tenth day of the month to protect yourself further.

If you have any further questions about the late payment of salaries/wages, please contact the legal experts at Solidarity’s service centre on 0861 25 24 23.

By Johan Roos

Question: Must I receive a pay slip?

Answer: The day on which an employee receives payment, the employer must provide him or her with the following information in writing:

The employer’s name and address.
The employee’s name and job title.
The period for which the payment is made.
The employee’s earnings.
Any deductions made from the employee’s salary.
The net income of the employee.
Any other relevant calculations.

Answer:

In terms of section 34 of the Basic Conditions of Employment Act an employer may deduct money from an employee’s remuneration under the following circumstances:

An employer may deduct from an employee’s remuneration only if in terms of section 34 the employee agrees in writing. The employer may also deduct money in respect of a collective agreement, court order or arbitration award.

Deductions in terms of loss or damage may be made in agreement with the employee only after a fair procedure has been followed.

Answer:

In terms of section 32 of the Basic Conditions of Employment Act (copied below), the employer is obligated to pay his employees’ salaries.

(1) An employer must pay to an employee any remuneration that is paid in money ─
(a) in South African currency;
(b) daily, weekly, fortnightly or monthly; and
(c) in cash, by cheque or by direct deposit into an account designated by the employee.

(2) Any remuneration paid in cash or by cheque must be given to each employee ─
(a) at the workplace or at a place agreed to by the employee;
(b) during the employee’s working hours or within 15 minutes of the commencement or conclusion of those hours; and
(c) in a sealed envelope which becomes the property of the employee.

(3) An employer must pay remuneration not later than seven days after ─
(a) the completion of the period for which the remuneration is payable; or
(b) the termination of the contract of employment.

(4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund.

If the employer fails to do this and the employee earns less than R182 000 a year, a complaint may be lodged with the Department of Labour. I usually suggest that the employee also submit his salary slip and any correspondence between the employer and himself as well as his service contract, if one exists.

By Johan Roos

Answer

In accordance with Article 33 of the Labour Relations Act (Act 66 of 1995) the following information should appear on a salary slip: employer’s name and address; employee’s name and occupation; period of payment; payment in cash; any deductions from the remuneration; the actual amount paid out; if relevant to the calculation of the employee’s remuneration, the employee’s remuneration and overtime rate; the number of ordinary and overtime hours worked during the period of payment; the number of hours worked on a Sunday or public holiday during the period; and, if it was agreed to calculate the average working time, the total number of ordinary and overtime hours worked during the period.

By Phil Davel

Question
I need some information. I submitted a valid sick note at my work to say that I had been booked off for ten days, but when I checked my salary, I noted that ten days’ money had been deducted. What can I do?

Answer
It is difficult to determine what you should do because there could be valid reasons why ten days’ money was deducted from your salary. It could be that you had less than six months’ service with your employer. The Basic Conditions of Service Act stipulates that during the first 6 months of your service you are entitled to only one day’s sick leave for every 26 days worked.

It could also be that you had already exhausted all the sick leave to which you are entitled. You and your employer could then agree to have it subtracted from your ordinary leave, otherwise it becomes unpaid leave.

However, should you have been entitled to ten days’ sick leave and your employer still deducted the money, it could be that he does not believe that you were really sick. He could possibly claim that there was a history of misuse of sick leave. You may then request by means of an internal grievance procedure that the matter be addressed in a reasonable way to give you an opportunity to explain matters.

However, should none of the above-mentioned actions be possible, you can refer the matter to the nearest office of the Department of Labour. They will contact the employer enquire why the money was deducted from your salary.

By Coenie Rheeders

Question
What must one do to claim outstanding statutory dues?

Reply
The new Christmas season is on its way and we are receiving many enquiries about underpaid salaries, as well as enquiries about bonuses and 13th cheques.  “Statutory dues” is the term used for monies that must be paid to employees and include salaries, bonuses, 13th cheques, overtime and certain allowances.

In cases where there are outstanding dues and the employee has already been dismissed, the claim for the outstanding statutory dues can be consolidated by means of an unfair dismissal dispute that is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or another bargaining council. In other words, in such a case a single dispute can be referred to them.

In cases where the employee is still employed by the employer, however, a different procedure must be followed. In cases like these the CCMA does not have jurisdiction in the matter.

1. The first step that has to be followed is that the employer should lodge an internal grievance or complaint about the outstanding dues at the pay office or human resources (HR).
2. If the employer fails to pay the outstanding amount/amounts and is registered with a bargaining council, the employee should approach the specific bargaining council to lodge a complaint. Alternatively, the employee should approach the Department of Labour if the employer is not registered with a bargaining council. .
3. If the employee’s basic (gross) salary is over the limit determined in terms of section 6(3) of the Basic Conditions of Service (the sum is R183 008,00 a year or R15 250,67 a month at present), the Department of Labour will not deal with the case and the case must then be referred to the Labour Court.  Please note that the employee still has to go to the Department of Labour and obtain proof that the Department of Labour will not deal with the case.
4. If the case is referred to the Labour Court, an application must be brought
• in terms of sections 77 (1) and (3) of the Basic Conditions of Service Act if the outstanding dues must be paid in terms of a contract of service;
• or  in terms of section 158 of the Labour Relations Act if the outstanding dues must be paid in terms of an agreement.

The employee should note that it might take a long time before the process of collecting outstanding statutory dues is concluded. It could also present difficulties if there is no concrete proof that the dues are outstanding. It is recommended that the proof be in writing (overtime sheets, a contract of service or a written agreement) as it is difficult and sometimes impossible to prove a case without documentation.

The motto  “ALWAYS GET IT IN WRITING” remains valid when claims for outstanding statutory dues are submitted.

 

By Phil Davel

Answer:

On terminating his service your husband will be entitled to the following remuneration:

- His agreed monthly salary as calculated in terms of section 35 of the Basic Conditions of Service Act (Act 75 of 1997) and as agreed in his employment contract (whether in writing or verbally);
- any overtime worked in terms of an agreement;
- his outstanding leave; and
- any other moneys owing to him in terms of an agreement or legislation.

It is also advisable to, on voluntary termination of service, take note of among others the following: Should your husband decide to resign, take into account the agreed period of notice as stated in the employment contract. The employer may not demand that he work a longer notice period. If no agreement was entered into concerning the notice period, or should the company’s policy not contain a stipulation in this regard, the normal regulation regarding notice periods as contained in section 37 of the Act will apply. The employment contract also needs to be reviewed to see if it has a prohibition of competition clause. This aspect will be of importance, especially if your husband intends to enter the employ of a similar employer in the same industry. A prohibition of competition clause can, among others, stipulate that your husband may, for a certain period and within a certain radius, not work for the competition.

By Johan Roos

Question

I have given a month’s notice in accordance with my contract. My employee asked me to leave immediately because someone else had already been found to fill my post. Can I insist on working for the duration of the month’s notice? What payments should be made to me?

Answer

To answer the question the Basic Conditions of Employment Act (Act 75 of 1997) and specifically article 38 must be consulted. According to article 38 the employer must pay out your month’s notice even if they do not want you to work out the month.

In the case of termination of employment, an employee’s remaining yearly leave must also be paid out in accordance with section 40 of the Basic Conditions of Employment Act. Yearly leave can be calculated on a pro rata basis – for every 17 days worked, one day’s leave must be granted.

By Adv. Paul Mardon

Question:

A month ago I resigned at mine A to take up a better position at another mine. I was medically examined when I left the service of the mine. The mine doctor and I regularly clashed over small things in the past and he refused to give me a certificate for this medical examination. I secured a good position at another mine, but they require a medical certificate from my previous employer for the medical examination that I underwent when I left the service of mine A. The other mine refuses to appoint me without this medical certificate. I asked my previous employer to give it to me, but the mine doctor says that it was their medical examination and they refuse to give it to me or the new mine. Is the mine obliged to give me the results of my last medical examination?

Answer:

Section 17 of the Mine Health and Safety Act (Act 29 of 1996), read with section 19, stipulates that an employer shall, at the cost of the employer, upon termination of service for whatsoever reason perform an exit medical examination on employees who are subject to medical surveillance at a mine. The occupational medical practitioner who performs the examination must prepare an exit certificate that reflects the results of all medical surveillance and it must specify whether any occupational diseases are present. A copy of this exit certificate must be filed in the empoyee’s medical surveillance record and, at the request of the employee, the employer must provide a copy of this record to the employee. Anybody who refuses to provide this exit certificate to the employee at his/her request, is guilty of a misdemeanor in terms of section 91 of the said act and, if found guilty, could be sentenced to a fine or imprisonment for a period not exceeding six months. I suggest that you report the doctor’s refusal to provide the exit certificate to your previous employer’s Human Relations Manager and that, should the employer still refuse to provide the certificate, you report it to the office of the Inspector of Mines of the Department of Minerals and Energy in your area.

Question:

Can a resignation be withdrawn?

Answer:

As is the case with most labour-law matters, there is no clear yes or no answer. In the case of Lottering & others vs Stellenbosch Municipality (2010) 31 ILJ 2923 (AH) the employees resigned without giving the required notice as stipulated in their contracts. In the Labour Court the employees argued, among other things, that their resignation had no legal force because of their neglect to comply with the period of notice as set out in the Basic Conditions of Service Act (No. 75 of 1997) and their service contracts.

The Labour Court found that a clear resignation cannot be withdrawn without the employer’s consent. An explicit acceptance by the employer is not necessary either. It was further found that a service contract ends when the period of notice expires and not when notice is given. The court confirmed that should an employee’s resignation not comply with the stipulated period of notice, this does not render the resignation invalid – it implies breach of contract and it is the employer who has an option to accept the resignation or not.

The lesson to be learned from this is not to resign on the spur of the moment. A decision to resign must be a well-considered one.

Question

I work for a pharmacy. My employer and I agreed in my contract of employment that I must give eight weeks’ notice if I want to resign after more than a year’s service. The contract also specifies that I must be aware of all the policies of the pharmacy and the rules that are applicable to me.

I gave eight weeks’ written notice to the employer, but the manager is insisting that I leave a month earlier, because the policy states that employees must give only 30 days’ notice. I won’t be able to leave a month earlier, as I did not make provision for it financially. What should I do now?

Answer

Section 37(1) of the Basic Conditions of Employment Act (No. 75 of 1997) states that if an employee has been employed for a year or longer, a minimum of four weeks’ notice is required upon resignation. Nothing prevents the parties from mutually agreeing on a notice period that is longer than the prescribed minimum period. Such an agreement will (subject to subsection 3 which states that the notice period for an employee may not be shorter than the notice period for the employer) will therefore be entirely valid.

In your case, you and your employer negotiated a fundamental condition of employment and reached an agreement on the provisions of resignation, namely that you mutually agreed that you must give eight weeks’ notice if you have been employed for longer than 12 months.

Conditions of employment cannot be changed one-sidedly. Merely citing the policy (which can be changed one-sidedly) would go against the stronger right obtained through bargaining.

Our advice is therefore that you invoke the provisions of your contract of employment that were negotiated beforehand, namely that you must give eight weeks’ notice. This provision is in line with section 4(c) of the Act, which states that a provision in a contract that is more beneficial for the employee must be specified as such.

Question:

I have to attend a cremation service in Australia of a family member who emigrated there. I would like to know, if I have to take nine days’ leave to attend the service, could I have it deducted from my family responsibility leave over three years?

Answer:

In terms of section 27 of the Basic Conditions of Service Act, every employee has only three days’ family responsibility leave per year. It cannot be carried over to a following year and you cannot take nine days’ family responsibility leave in advance, unless, of course, the employer allows it, but you will not be entitled to it in terms of the Act.

If you took three days’ family responsibility leave during the course of the year, you have exhausted it and you will have to take ordinary leave should you need more leave in the same year. You will not be able to take nine days now and not take family responsibility leave for the next three years.

Sick leave, however, is different. Section 22 stipulates that you have 36 days’ continuous sick leave in every three-year cycle and if you take all of it during the first year, you have nothing left for the rest of the three years. Section 27 (which deals with family responsibility leave in the event of the death of a family member, as provided for in the Act), however, does not mention a three-year period/cycle.

Remember that your starting point will always be to consult your employment contract or the employer’s leave policy. It is possible that the contract or policy could be more favourable than the Basic Conditions of Service Act. You may also ask the employer for a special concession but, if the provisions of section 27 are being complied with, you have, as was mentioned, only three days’ family responsibility leave a year and you will have to take ordinary leave if you want to take the other six days.

Feel free to contact the Solidarity Call Centre on 0861 25 24 23 if you have any further enquiries about family responsibility leave.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:

Getting older is something that no employee can avoid. In most cases employees accept it, but sometimes there are employees who feel that they can still work for a few extra years. In many cases it is true that they can in fact work for a number of years more. Nevertheless, the employer could argue that older staff members must make way for younger ones, or employees are told that their service will be terminated when they reach retirement age.
In terms of Section 186(2)(b) of the Labour Relations Act, dismissal is justified when the employee reaches the agreed retirement age or the age at which employees in that capacity normally retire.
Nevertheless, an employee can still not be dismissed because he/she is getting older, even if he/she is losing his/her ability to work.
If there is not an agreed retirement age and the employer questions the employee’s ability to do his/her work, the employer can address the issue. However, the onus will be on the employer to prove the employee’s inability.
The employee can be obliged to retire if there is an agreed retirement age in writing. In most cases, the employee is protected by Section 186(2)(b) of the Labour Relations Act.
For further enquiries regarding retirement age and the law, call Solidarity’s legal experts on 0861 25 24 23.

Question:

My date of appointment is 01/10/2004 and from that date I have not earned any pension. In December 2005 I brought it to the attention of the new manager and he immediately referred it to our head office, where it has been corrected from December 2005 without taking the previous year into account. Am I entitled to the interest on that pension?

Answer:

The employee has to refer to his service contract to determine whether the employer has to contribute to his pension.

If the contract states that the employer should contribute to his pension, the employer should make a retroactive payment.

Legal question about retrenchments Answered by Phil Davel, Solidarity Legal Services, Service Centre Question: Our company is busy with retrenchments. What can I expect to get out? If an employer is going through a retrenchment process, the retrenchments must – in terms of Section 41 of the Basic Conditions of Employment Act (Act 75 of 1997, as amended), Section 189 of the Labour Relations Act (Act 66 of 1995) and the code of conduct regarding retrenchments – be based on operational requirements. It is at this stage that the trade unions try to avoid, prevent or delay the retrenchment process, or try to find ways of reducing the extent of the retrenchments. If it seems that retrenchments are inevitable, the trade unions step in on behalf of their members to negotiate the best severance packages possible with the employer. Severance packages are regulated by Section 41 of the Basic Conditions of Employment Act. This act determines that a severance package is payable if the employee is retrenched: • Due to the employer’s operational requirements; or • If the employer is liquidated in terms of Section 38 of the Insolvency Act (Act 24 of 1936). Operational requirements are defined in Section 41(1) of the Basic Conditions of Employment Act as well as the above-mentioned code of conduct as requirements based on: • Economic requirements, e.g. the employer is experiencing financial difficulty due to a drop in the demand for of the selling price of its products; • Structural requirements, e.g. the entire department becomes obsolete or is contracted out; • Technological requirements, e.g. machinery is acquired that can carry out the manufacturing or processes more cheaply; and • Similar requirements – this type of situation arises if, for example, the employer moves away and has to close the business. Determining severance packages The minimum severance package payable to the employee is equal to one week’s salary or wage for every year of service the employee completed at the employer. In the case of a collective agreement, a service contract or a sectoral stipulation this stipulation can, however, differ. Note that this is only the minimum requirement and the employee is free to negotiate, on his/her own or through a trade union (if there is a collective agreement), for a better package, for example two weeks’ salary for every completed year or four months’ salary. The employee is in an especially favourable position to negotiate if it is a voluntary retrenchment process, in other words the employee is first given the choice to accept a severance package and therefore to be retrenched voluntarily. This usually happens before a forced retrenchment process begins. Previous service at the same employer interrupted for a period of less than one year is regarded as continuous service unless there was a previous retrenchment. Right to remuneration remains untouched The pay-out of a severance does not affect the employee’s right to any other remuneration. Therefore, the pay-out of outstanding leave and the required notice period is still in force. Employee can forfeit severance package Something that could be to the employee’s detriment is if the employer, in order to avoid retrenchment, offers the employee alternative employment (even at a lower salary or at another employer) and the employee unreasonably declines. In such a case the employer is not obliged to pay a severance package. Resolution of disputes If a dispute arises regarding a severance package, it can be referred, in writing, to the appropriate negotiation or statutory board or to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation and arbitration. If the dispute remains unresolved, it can be referred to the Labour Court. The Labour Court can then issue any order regarding the amount payable and also order the employer to make such payment. For further information regarding severance packages, please call Solidarity’s legal experts at the service centre at 0861 25 24 23.

Johan Roos

Question:

Dismissal on the grounds of operational requirements is regulated by Section 189 of the Labour Relations Act (Act 66 of 1995), but Section 189 only regulates the procedure in the case of retrenchment and not the relevant payments. As far as the retrenchment package and other payment are concerned, you need to look at the Basic Conditions of Employment Act (Act 75 of 1997) as well as the Labour Relations Act to determine what payment an employee must receive when he/she is retrenched.

Answer:

Section 41 of the Basic Conditions of Employment Act regulates the retrenchment package. In terms of this section, an employee must receive remuneration of one week’s salary for every completed year of service. The minimum requirement is established by labour legislation to give the employee the opportunity to negotiate in order to improve his/her position. The guideline is procedurally summarised in Section 189 of the Labour Relations Act.

Section 40 of the Basic Conditions of Employment Act determines that an employer must pay out any paid time off that has not yet been taken by the employee. This is a payment to which the employee is entitled anyway when employment is terminated.

Section 37 of the Basic Conditions of Employment Act states that if a service contract is terminated, the relevant notice period applies. In the case of dismissal for operational reasons, the employee will also have to give notice as determined by Section 37.

The Basic Conditions of Employment Act states the following:

1. One week’s notice must be given if the employee has been working at the company for less than six weeks;
2. Two weeks’ notice if the employee has been working at the company for more than six weeks; and
3. Four weeks’ notice if the employee has been working at the company for more than a year.

The stipulation in the employee’s service contract regarding the notice period must also be considered. Of course, an agreement can be reached that the employee does not have to work a notice period. In such a case, the employer will pay out the notice period instead of the employee having to work the notice period.

For further information about severance packages and retrenchments, please call Solidarity’s legal experts at 0861 25 24 23.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:

There are talks of retrenchment at the company where I work. I would like to know what payment I am entitled to when I am retrenched?

Answer:

Dismissal on the grounds of operational requirements is regulated by Section 189 of the Labour Relations Act (Act 66 of 1995), but Section 189 only regulates the procedure in the case of retrenchment and not the relevant payments. As far as the retrenchment package and other payment are concerned, you need to look at the Basic Conditions of Employment Act (Act 75 of 1997) as well as the Labour Relations Act to determine what payment an employee must receive when he/she is retrenched.
Section 41 of the Basic Conditions of Employment Act regulates the retrenchment package. In terms of this section, an employee must receive remuneration of one week’s salary for every completed year of service. The minimum requirement is established by labour legislation to give the employee the opportunity to negotiate in order to improve his/her position. The guideline is procedurally summarised in Section 189 of the Labour Relations Act.
Section 40 of the Basic Conditions of Employment Act determines that an employer must pay out any paid time off that has not yet been taken by the employee. This is a payment to which the employee is entitled anyway when employment is terminated.
Section 37 of the Basic Conditions of Employment Act states that if a service contract is terminated, the relevant notice period applies. In the case of dismissal for operational reasons, the employee will also have to give notice as determined by Section 37.
The Basic Conditions of Employment Act states the following:
1. One week’s notice must be given if the employee has been working at the company for less than six weeks;
2. Two weeks’ notice if the employee has been working at the company for more than six weeks; and
3. Four weeks’ notice if the employee has been working at the company for more than a year.
The stipulation in the employee’s service contract regarding the notice period must also be considered. Of course, an agreement can be reached that the employee does not have to work a notice period. In such a case, the employer will pay out the notice period instead of the employee having to work the notice period.
For further information about severance packages and retrenchments, please call Solidarity’s legal experts at 0861 25 24 23.

Answered by Phil Davel, Solidarity Legal Services, Service Centre

Question:
Our company is busy with retrenchments. What can I expect to get out?

Answer:
If an employer is going through a retrenchment process, the retrenchments must – in terms of Section 41 of the Basic Conditions of Employment Act (Act 75 of 1997, as amended), Section 189 of the Labour Relations Act (Act 66 of 1995) and the code of conduct regarding retrenchments – be based on operational requirements. It is at this stage that the trade unions try to avoid, prevent or delay the retrenchment process, or try to find ways of reducing the extent of the retrenchments. If it seems that retrenchments are inevitable, the trade unions step in on behalf of their members to negotiate the best severance packages possible with the employer.
Severance packages are regulated by Section 41 of the Basic Conditions of Employment Act. This act determines that a severance package is payable if the employee is retrenched:
• Due to the employer’s operational requirements; or
• If the employer is liquidated in terms of Section 38 of the Insolvency Act (Act 24 of 1936).
Operational requirements are defined in Section 41(1) of the Basic Conditions of Employment Act as well as the above-mentioned code of conduct as requirements based on:
• Economic requirements, e.g. the employer is experiencing financial difficulty due to a drop in the demand for of the selling price of its products;
• Structural requirements, e.g. the entire department becomes obsolete or is contracted out;
• Technological requirements, e.g. machinery is acquired that can carry out the manufacturing or processes more cheaply; and
• Similar requirements – this type of situation arises if, for example, the employer moves away and has to close the business.
Determining severance packages
The minimum severance package payable to the employee is equal to one week’s salary or wage for every year of service the employee completed at the employer. In the case of a collective agreement, a service contract or a sectoral stipulation this stipulation can, however, differ.
Note that this is only the minimum requirement and the employee is free to negotiate, on his/her own or through a trade union (if there is a collective agreement), for a better package, for example two weeks’ salary for every completed year or four months’ salary.
The employee is in an especially favourable position to negotiate if it is a voluntary retrenchment process, in other words the employee is first given the choice to accept a severance package and therefore to be retrenched voluntarily. This usually happens before a forced retrenchment process begins. Previous service at the same employer interrupted for a period of less than one year is regarded as continuous service unless there was a previous retrenchment.
Right to remuneration remains untouched
The pay-out of a severance does not affect the employee’s right to any other remuneration. Therefore, the pay-out of outstanding leave and the required notice period is still in force.
Employee can forfeit severance package
Something that could be to the employee’s detriment is if the employer, in order to avoid retrenchment, offers the employee alternative employment (even at a lower salary or at another employer) and the employee unreasonably declines. In such a case the employer is not obliged to pay a severance package.
Resolution of disputes
If a dispute arises regarding a severance package, it can be referred, in writing, to the appropriate negotiation or statutory board or to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation and arbitration. If the dispute remains unresolved, it can be referred to the Labour Court. The Labour Court can then issue any order regarding the amount payable and also order the employer to make such payment.
For further information regarding severance packages, please call Solidarity’s legal experts at the service centre at 0861 25 24 23.

Question:

I am currently employed as a welder but experience a severe condition of rheumatism with the result that I cannot always use my hands properly. Can the employer simply dismiss me?

Answer:

Disability can be temporary or permanent. If temporary, the employer should do a thorough check-up of the disability. If permanently disabled the employer should investigate the possibility of alternative employment or adapt the duties or working conditions of the employee in order to accommodate the employee’s disability.

The employee should have the opportunity of a fair hearing and to be assisted by a trade union representative or fellow employee.

The following should be considered to determine whether the dismissal, if appropriate, is fair:

1. Is the employee able to work or not?
2. Extent to which the employee is able to work;
3. Extent to which the employee’s working condition can be adjusted in order to accommodate the disability, and
4. Adjustment of the employee’s duties.

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

• The employer must determine whether or not the employee is capable of performing his duties.
• The employer must determine for how long the employee will be absent from work owing to illness.
• The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
• The employer must establish whether or not the employee can be reassigned.

Question: Is an annual increase compulsory? Does an employer have to increase his employees’ salaries annually?

Answer: As in the case of bonuses, salary increases are granted at the discretion of the employer, unless such increases are determined and guaranteed according to agreement. The employee is not entitled to a salary increase. The employee may make enquiries and request that the employer adjust the salary structure. Increases linked with the current inflation rate plus 2% are usually sufficient. The inflation rate is currently 5,1%. 

Question: What remuneration is an employee entitled to if he works on public holidays or Sundays?

Answer: First, there must be an agreement between the employee and the employer if the employee works on a public holiday or a Sunday. Second, the employee is entitled to double his usual remuneration.   

Question: I am experiencing problems regarding the payment of my salary. I have an agreement with my employer that my salary will be deposited into my bank account in time for my debit orders at the end of the month. However, my salary was deposited too late for my debit orders in April, which has happened before. The last time this happened, I requested to have a meeting with my employer to discuss the matter. What should I do now?

Legal question answered by Phil Davel, Solidarity Legal Services, Service Centre

Answer: The Basic Conditions of Employment Act, no. 75 of 1997, determines in section 32(3)(a) that employers must pay employees’ salaries/wages within seven days of the period for which the salaries/wages are payable. Therefore, the Act gives employers a grace period of seven days after the agreed date of payment to disburse employees’ salaries.

If your employer does not pay your salary within this grace period, you can lodge an internal grievance against the employer. The grievance can be followed by a prompt note to the employer. Once you have followed all internal procedures, you can contact the Department of Labour, since your employer has failed to disburse salaries within the determined period.

With respect to charges such as bank charges and interest that may have accrued unnecessarily owing to your employer’s failure to pay your salary on the agreed date, you can lodge a claim for damages against your employer, provided that you are able to prove the damages. Depending on the amount involved, the appropriate forum will be the small claims court or the magistrate’s court. If your employer continues to pay your salary late, you can have the date of your debit orders moved to the seventh or even the tenth day of the month to protect yourself further.

If you have any further questions about the late payment of salaries/wages, please contact the legal experts at Solidarity’s service centre on 0861 25 24 23.

By Johan Roos

Question: Must I receive a pay slip?

Answer: The day on which an employee receives payment, the employer must provide him or her with the following information in writing:

The employer’s name and address.
The employee’s name and job title.
The period for which the payment is made.
The employee’s earnings.
Any deductions made from the employee’s salary.
The net income of the employee.
Any other relevant calculations.

Answer:

In terms of section 34 of the Basic Conditions of Employment Act an employer may deduct money from an employee’s remuneration under the following circumstances:

An employer may deduct from an employee’s remuneration only if in terms of section 34 the employee agrees in writing. The employer may also deduct money in respect of a collective agreement, court order or arbitration award.

Deductions in terms of loss or damage may be made in agreement with the employee only after a fair procedure has been followed.

Question:
I have a problem with my employer. We have an agreement that my salary will be paid in in time for my debit orders to be deducted at the end of the month. April was the umpteenth time that my salary was not available in time for my debit orders to be deducted. The last time that my salary was not paid in timeously I requested a meeting with my employer so that we could discuss the matter. What can I do?

Answer:
The Basic Conditions of Employment Act (Act 75 of 1997) stipulates in Section 32(3)(a) that the employer must pay your salary or wages within seven days after the end of the period in respect of which it was payable. This means that the Act grants the employer seven days’ respite after the pay date agreed upon to pay his employees’ remuneration. If, however, this is not done, the next step would be to lodge an internal grievance against the employer. This can be followed by a letter of demand to your employer. When all the internal steps have been exhausted you must contact the Department of Labour because your employer fails to pay in salaries within the appointed time. Regarding the costs such as bank charges and interest that you unnecessarily incurred as a result of the employer’s neglect, you can bring a claim for damages against the employer if you can prove the damages. Depending on the amount, the correct forum will be either the small-claims court or the magistrate’s court. A further point of advice is that, should the empoloyer make a habit of not paying your salary in time, you could move the deduction date of your debit orders to the seventh or even the tenth day of each month. This would only be a positive step to protect yourself even further.

If there are any further questions regarding the late payment of salaries, feel free to call the legal experts at Solidarity’s call centre on 0861 25 24 23.

 

 

Answer:

In terms of section 32 of the Basic Conditions of Employment Act (copied below), the employer is obligated to pay his employees’ salaries.

(1) An employer must pay to an employee any remuneration that is paid in money ─
(a) in South African currency;
(b) daily, weekly, fortnightly or monthly; and
(c) in cash, by cheque or by direct deposit into an account designated by the employee.

(2) Any remuneration paid in cash or by cheque must be given to each employee ─
(a) at the workplace or at a place agreed to by the employee;
(b) during the employee’s working hours or within 15 minutes of the commencement or conclusion of those hours; and
(c) in a sealed envelope which becomes the property of the employee.

(3) An employer must pay remuneration not later than seven days after ─
(a) the completion of the period for which the remuneration is payable; or
(b) the termination of the contract of employment.

(4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund.

If the employer fails to do this and the employee earns less than R182 000 a year, a complaint may be lodged with the Department of Labour. I usually suggest that the employee also submit his salary slip and any correspondence between the employer and himself as well as his service contract, if one exists.

By Johan Roos

Answer

In accordance with Article 33 of the Labour Relations Act (Act 66 of 1995) the following information should appear on a salary slip: employer’s name and address; employee’s name and occupation; period of payment; payment in cash; any deductions from the remuneration; the actual amount paid out; if relevant to the calculation of the employee’s remuneration, the employee’s remuneration and overtime rate; the number of ordinary and overtime hours worked during the period of payment; the number of hours worked on a Sunday or public holiday during the period; and, if it was agreed to calculate the average working time, the total number of ordinary and overtime hours worked during the period.

By Phil Davel

Question
I need some information. I submitted a valid sick note at my work to say that I had been booked off for ten days, but when I checked my salary, I noted that ten days’ money had been deducted. What can I do?

Answer
It is difficult to determine what you should do because there could be valid reasons why ten days’ money was deducted from your salary. It could be that you had less than six months’ service with your employer. The Basic Conditions of Service Act stipulates that during the first 6 months of your service you are entitled to only one day’s sick leave for every 26 days worked.

It could also be that you had already exhausted all the sick leave to which you are entitled. You and your employer could then agree to have it subtracted from your ordinary leave, otherwise it becomes unpaid leave.

However, should you have been entitled to ten days’ sick leave and your employer still deducted the money, it could be that he does not believe that you were really sick. He could possibly claim that there was a history of misuse of sick leave. You may then request by means of an internal grievance procedure that the matter be addressed in a reasonable way to give you an opportunity to explain matters.

However, should none of the above-mentioned actions be possible, you can refer the matter to the nearest office of the Department of Labour. They will contact the employer enquire why the money was deducted from your salary.

By Coenie Rheeders

Question
What must one do to claim outstanding statutory dues?

Reply
The new Christmas season is on its way and we are receiving many enquiries about underpaid salaries, as well as enquiries about bonuses and 13th cheques.  “Statutory dues” is the term used for monies that must be paid to employees and include salaries, bonuses, 13th cheques, overtime and certain allowances.

In cases where there are outstanding dues and the employee has already been dismissed, the claim for the outstanding statutory dues can be consolidated by means of an unfair dismissal dispute that is referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or another bargaining council. In other words, in such a case a single dispute can be referred to them.

In cases where the employee is still employed by the employer, however, a different procedure must be followed. In cases like these the CCMA does not have jurisdiction in the matter.

1. The first step that has to be followed is that the employer should lodge an internal grievance or complaint about the outstanding dues at the pay office or human resources (HR).
2. If the employer fails to pay the outstanding amount/amounts and is registered with a bargaining council, the employee should approach the specific bargaining council to lodge a complaint. Alternatively, the employee should approach the Department of Labour if the employer is not registered with a bargaining council. .
3. If the employee’s basic (gross) salary is over the limit determined in terms of section 6(3) of the Basic Conditions of Service (the sum is R183 008,00 a year or R15 250,67 a month at present), the Department of Labour will not deal with the case and the case must then be referred to the Labour Court.  Please note that the employee still has to go to the Department of Labour and obtain proof that the Department of Labour will not deal with the case.
4. If the case is referred to the Labour Court, an application must be brought
• in terms of sections 77 (1) and (3) of the Basic Conditions of Service Act if the outstanding dues must be paid in terms of a contract of service;
• or  in terms of section 158 of the Labour Relations Act if the outstanding dues must be paid in terms of an agreement.

The employee should note that it might take a long time before the process of collecting outstanding statutory dues is concluded. It could also present difficulties if there is no concrete proof that the dues are outstanding. It is recommended that the proof be in writing (overtime sheets, a contract of service or a written agreement) as it is difficult and sometimes impossible to prove a case without documentation.

The motto  “ALWAYS GET IT IN WRITING” remains valid when claims for outstanding statutory dues are submitted.

 

Question:

I would like to know when I could institute a case of sexual harassment against someone. A colleague rubs his body against mine. On more than one occasion I have subtly tried to tell him that I don’t like what he is doing. Recently he made a joke in the office and said that I am his secret lover. I have told him that he may never do it again and that he has to stay away from me. Now he is trying to make peace by sending personal gifts to me. I return them, but he doesn’t stop. What can I do to put a stop to it?

Answer:

According to the code of good practice for the handling of sexual harassment cases sexual harassment is described as any undesirable act of a sexual nature. One should however distinguish between sexual attention and sexual harassment.

Sexual attention becomes sexual harassment when:

• the behaviour continues (although a non-recurrent incident could also be sexual harassment);
• the aggrieved person has clearly put it to the person that his behaviour is unacceptable and offensive and that the person should stop this behaviour; and
• the transgressor knows that his behaviour has been unacceptable and offensive.

Sexual harassment indeed is a form of unfair discrimination based on gender or sexual orientation. Section 6 of the Employment Equity Act determines that no one may directly or indirectly discriminate unfairly against a person on the basis of among other his/her gender or sexual orientation.

When a person is harassed, the person could decide to address it formally or informally, depending on how serious the harassment is.

The aggrieved person could solve the matter informally by confronting the person with his undesirable behaviour and request him to stop his behaviour. It is expedient to have a talk to the harasser in the presence of a trade union representative.  Such a person could later be called as a witness in the case. If the behaviour continues, the aggrieved could talk to the harasser’s direct manager. The person’s direct manager could then talk to the harasser.

If the informal procedure was unsuccessful or if the harassment was of a very serious nature, the aggrieved person could decide to immediately start the formal process. This could be done by following the employer’s grievance procedure and then insist that the employer should investigate the complaints and take disciplinary action against the harasser. Should the employer refuse to take action or should the grievance not be solved to the satisfaction of the aggrieved person, a dispute for unfair discrimination could be referred to the CCMA or appropriate Bargaining Council to obtain a certificate. After the appropriate forum has issued a certificate, the dispute could be referred to the Labour Court to settle the dispute.

Before one can answer your question about sexual harassment, one first has to establish what sexual harassment is.

Sexual harassment entails unsolicited actions of a sexual nature, which have to be distinguished from sexual attention agreed to by both parties. Even if there used to be a relationship between employees, but one of the parties is no longer happy with the attention he or she is receiving, the attention can turn into harassment. As soon as one person says “no” or feels uncomfortable with the employee’s conduct or advances, it is sexual harassment.

Sexual attention becomes harassment in the following cases:

• If the actions or attention continues after the person to whom the attention is directed has objected to it.
• If the person to whom the attention is directed immediately objects and makes it clear that the attention is undesirable.

Question:
Are there various forms of sexual harassment that need to be considered?

Reply:
Sexual harassment can include unsolicited verbal and non-verbal behaviour but is not limited to it.

The following are examples of sexual harassment:
• Unsolicited physical contact of a sexual nature, which can range from indecent assaault, rape, unsolicited physical contact to a body search by a person of the opposite sex.
• Verbal forms of sexual harassment can include unsolicited sexual innuendos, suggestions, questions, jokes or insults of a sexual nature, and remarks about a person’s body in their presence and made directly to them. Even a wolf whiste in the direction of a person or persons can in certain instances be regarded as harassment.
• Non-verbal forms of sexual harassment can include behaviour such as unsolicited signs made to the person, as well as indecent exposure. Showing pornography or even an object of a sexual nature to another person can also be regarded as sexual harassment.
• Quid pro quo harassment takes place when an employer, manager, supervisor or fellow employee tries to control processes such as appointments, promotions, training, disciplinary procedures, discharging an employee or salary raises in exchange for sexual favours.
• Sexual favouritism is when one employee is promoted or gets a raise as a result of a sexual relationship but another employee is passed over because he or she refuses to participate in such a relationship.

Before taking a case of sexual harassment any further, it is important to exhaust all internal remedies. The grievance procedure is regarded as an internal remedy and must be followed. It is also important to stress that, if you make allegations about victimisation or discrimination against a person, you must be able to prove these allegations substantively. The person against whom the grievance was lodged could take civil action against you if your allegations were false.

If your workplace does not have a grievance procedure, you must write letters to the employer. These must then be escalated systematically to the highest level in the company. It then serves the same purpose as the grievance procedure.

When the internal steps have been exhausted, external remedies can be sought.

Question: What will happen if I extend my sick leave when I am too ill to go back to work?

Answer: The same regulations applicable to sick leave will apply in such a case. If an employee was absent for more than two consecutive days, he must provide the employer with a medical certificate.

By Phil Davel

Question: I work for a firm that imports and locally distributes farm equipment. Some time ago a was on sick leave for seven weeks, and now my employer is refusing to pay out my last week’s salary. Is the employer obliged to apply ordinary leave if I have not sick leave left?

 

Answer: Section 20(5)(a) of the Basic Conditions of Employment Act stipulates that the employer may not allow an employee to take annual leave during any other leave period to which he/she is entitled. This implies that the law does not allow your employer to grant ordinary leave as a substitute for sick leave.

 

If you both agree to relinquish your right not to use ordinary leave for this purpose, the employer may allow it, but then you cannot invoke the legislation. If you and the employer do not agree, he cannot use your ordinary leave for the period during which you were ill, and therefore you can be placed on unpaid leave.

Question:

What will happen if I extend my sick leave when I am too ill to go back to work?

 

Answer:

The same regulations applicable to sick leave will apply in such a case. If an employee was absent for more than two consecutive days, he must provide the employer with a medical certificate.

Question:
How many days’sick leave am I entitled to and do I have to hand in a medical certificate?

Reply:
Sick leave is regulated in terms of section 22 of the Basic Service Conditions Act.

Section 22 states that an employee is entitled to six weeks’ paid sick leave in a cycle of 36 months.

In the first six months after beginning his or her employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

The employee has to prove illness in terms of section 23 of the Basic Service Conditions Act. An employer can demand a medical certificate before paying an employee who is absent for more than two consecutive days or somebody who is often absent.

Question:
I’m working for a company and I want to know how much sick leave I’m entitled to according to law.

Reply:
Section 22 of the Basic Conditions of Employment Act stipulates that every employee is entitled to sick leave.

If the employee has been working for the employer for less than six months, the following will apply:

“… [An] employee is entitled to one day’s paid sick leave for every 26 days worked. An employer may reduce the employee’s entitlement to sick leave by the number of days’ sick leave taken.”

I would suggest that the employer count the number of days an employee has worked and divide it by 26. The following serves as an example: If 100 days were worked, 100 must be divided by 26, giving a total of 3,84 days’ sick leave which may be taken at normal pay. If the employee took more days’ sick leave (more than the 3,84 he/she is entitled to at that stage), unpaid leave will take effect, if both parties have agreed that it could be used for sick leave. Let’s assume the employee took 10 days’ sick leave, for example, while he/she was only entitled to 3,84 days’ sick leave at that stage, the balance of days used for sick leave would be subject to unpaid leave, unless another arrangement was made. Therefore, the employee would have used 6,16 days’ unpaid leave.

If the employee has been working for the employer for longer than six months, the following will apply:

A sick leave cycle means the period of 36 months’ employment with the same employer immediately following an employee’s commencement of employment; or the completion of that employee’s prior sick leave cycle. During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

If the employee has been working for longer than six months and works according to a five- day work week, then he/she is entitled to 30 days’ paid sick leave. This allocation of 30 days is available in full after six months’ employment, and is available to the employee until the end of a 36 month term of service, whereafter a next leave cycle will commence. In practice, it means that the employee could even take 30 days’ sick leave during his/her first year of employ as long as he/she has already completed six months’ employment with the employer. The employee must, however, bear in mind that his/her sick leave for the remainder of the 36 months will then be exhausted, and that any sick leave taken within the first six months of employment will first be deducted from the 30 days.

 

By Phil Davel

Question
I need some information. I submitted a valid sick note at my work to say that I had been booked off for ten days, but when I checked my salary, I noted that ten days’ money had been deducted. What can I do?

Answer
It is difficult to determine what you should do because there could be valid reasons why ten days’ money was deducted from your salary. It could be that you had less than six months’ service with your employer. The Basic Conditions of Service Act stipulates that during the first 6 months of your service you are entitled to only one day’s sick leave for every 26 days worked.

It could also be that you had already exhausted all the sick leave to which you are entitled. You and your employer could then agree to have it subtracted from your ordinary leave, otherwise it becomes unpaid leave.

However, should you have been entitled to ten days’ sick leave and your employer still deducted the money, it could be that he does not believe that you were really sick. He could possibly claim that there was a history of misuse of sick leave. You may then request by means of an internal grievance procedure that the matter be addressed in a reasonable way to give you an opportunity to explain matters.

However, should none of the above-mentioned actions be possible, you can refer the matter to the nearest office of the Department of Labour. They will contact the employer enquire why the money was deducted from your salary.

By Phil Davel

Question: What should I do if strikers prevent me from going to work? What are my rights with respect to my salary? We have to fax an attendance register to head office every morning. As we work on the basis of no work, no pay, can money be deducted from my salary if strikers prevent me from reporting for work?

Answer: It is important to remember that your safety is the first concern during a strike. If you feel unsafe or are intimidated by strikers, you can lodge an internal grievance with the employer and request him to come up with a workable solution. The employer is required by law to ensure a safe working environment.

The employer is also required to pay you if you are willing to work and tender your services in circumstances where you are prevented from going to work.

If you are prevented from signing the attendance register, it is advisable to make a statement at the employer’s security company or the police office to the effect that you did report for duty and that you were intimidated or prevented from going to work. The statement can be faxed to the employer.

Question:

I am a salesman at a large paint company with eight years of service. My employer recently retrenched me and I have to receive a severance package of eight weeks’ salary. My employer says that he bases the calculation on my basic salary, but I feel it should include my commission and medical benefit as well. Am I right?

Answer:

Section 35(5) of the Basic Conditions of Employment Act 75 of 1997 as amended (BCEA) provides that the Labour Minister can determine, following a consultation process and by means of a notice in the Government Gazette, which categories of remuneration are included in and which are excluded from the calculation of, among other things, an employee’s severance package in terms of Section 41 of the BCEA.

Question: Does an employer have to provide me with a certificate of service when I resign?

Answer: In terms of section 42 of the Basic Conditions of Employment Act, the employee has to be provided with a certificate of service.
In terms of section 42, it must contain the following:

• The employee’s full name;
• The employer’s name and address;
• Any bargaining council under which the member falls;
• The date on which the employee started working there and the date on which his/her service was terminated;
• The employee’s job title and job description; and
• The last payment date and, if requested by the employee, a reason for the termination of service.

Answered by Phil Davel, Solidarity Legal Services, Service Centre

Members often ask what the legal requirements are for notice periods before they hand in their resignation. If an employee works 24 hours or more for an employer and no contractual terms are applicable, the Basic Conditions of Employment Act (Act 75 of 1997, as amended) requires minimum notice periods before employment can be terminated in writing.
The notice period applies to both the employer and employee and is determined by the employee’s length of service. If the employee has been employed for:
- Six months or less, one week’s notice is required;
- Six months but less than a year, two weeks’ notice is required; and
- One year or more, four weeks’ notice is required.
As far as domestic workers and farm workers are concerned, the principle of four weeks’ notice also applies if they have been employed for more than six months.
Notice period during leave
An employee’s notice period cannot coincide with his/her annual leave. If an employee gives notice of termination of service, it cannot be done during any leave period and, with the exception of sick leave, it also cannot coincide with any leave period.
Longer or shorter notice periods than required by law
If a two-week notice period is required from the employer, the employer cannot agree with the employee on a notice period of, for example, four weeks. Although an employee is obliged to work through a notice period, the employer and the employee can agree that shorter notice can be given. However, the employer is still obliged to pay out the statutory notice period.

Question:

I have entered into a service contract with my employer in terms of which I have to work for a probationary period of three months. Could my service contract be terminated after expiry of the term without further notice?

Answer:

Item 8 of Schedule 8 of the Labour Relations Act determines the manner in which employers should act against employees during the probationary period.

Probationary periods are determined according to the nature of the job and could be extended by the employer, at his discretion.  

Grounds for the extension of the probationary period could include that the employer is not entirely satisfied with the service rendered by the employee. It is expected from the employer to provide clear guidelines to the employee concerning the minimum required standards that the employee has to meet.                

The employer should also inform employees on a regular basis what is expected during the probationary period, indicate mistakes to the employee and render assistance to correct such mistakes. 

Should the employer decide to dismiss the employee after the probationary period, the employee should at least be afforded the opportunity to make presentations regarding areas where he could improve his service.

An employer however has the authority to dismiss an employee after expiry or even during the probationary period.

Schedule 8 of the Labour Relations Act makes provision that employees who have been appointed with a probationary period and who are disciplined due to work performance are normally judged more leniently.

By Phil Davel

Question: I have worked at a retail bookstore for the past eight months and want to given notice. What will the implications be if I give more than two weeks’ notice? Can the employer force me to give two weeks’ notice?

Answer: Section 37(1)(b) of the Basic Conditions of Employment Act stipulates that you must give notice of at least two weeks. Unless your contract of service specifies that a maximum notice period of two weeks applies, the employer cannot force you to give only two weeks’ notice.

By Johan Roos

Question: What must my employer pay me if I resign?

Answer: Section 40 of the Basic Conditions of Employment Act stipulates that an employer must pay an employee for any paid time off that he has not taken, if the employee has been in employment longer than four months.

25 November 2010

Question: My husband works for an air-conditioning company and wants to resign. What compensation must he get when he resigns?

Answer: On resignation, your husband will be entitled to the following compensation: His agreed monthly salary as calculated in terms of section 35 of the Basic Conditions of Employment Act 75 of 1997 and as agreed in his contract of employment (whether in writing, or verbally); any overtime worked in terms of an agreement; his remaining leave; and any other compensation owed to him in terms of an agreement or legislation.

In the case of resignation, the following aspects must also be taken into consideration: When your husband decides to resign, the agreed notice period as mentioned in the contract of employment must be adhered to. The employee may not expect him to work a longer notice period. In the absence of an agreed notice period, or if the company’s policy does not cover this aspect, the usual regulations regarding notice periods as set out in section 37 of the Act will apply. The contract of employment must also be checked for a prohibition of competition, that is, a non-competition clause, especially if your husband intends to find employment at a similar employer in the same industry. A non-competition clause may, among other things, prevent your husband from going to work for the competition for a specific period and within a certain radius

Question:

If my employer wants to dismiss me because of illness, what steps must he follow?

Answer:

If an employee is unable to perform his duties as a result of illness or other, similar factors, the employer is entitled to dismiss him. In this case, the employee is dismissed on the basis of operational requirements and not as a result of misconduct. The guidelines regarding dismissal for operational requirements are set out in the Code of Good Practice in the Labour Relations Act and include the following:

• The employer must determine whether or not the employee is capable of performing his duties.
• The employer must determine for how long the employee will be absent from work owing to illness.
• The employer must establish whether or not certain changes can be made to enable the employee to perform his duties.
• The employer must establish whether or not the employee can be reassigned.

Question:

How do I determine who is an employee?

Answer:

Section 83A of the Basic Conditions of Employment Act (Act 75 of 1997) as well as Section 200A of the Labour Relations Act (Act 66 of 1995) provides the following guidelines for determining whether or not someone is regarded as an employee:

• In what way is the person under the control of another person? In other words: does the person have to carry out orders given to him/her by another person?
• Are the person’s working hours determined by the employer?
• Is the person part of the organisation for which he/she works?
• Does the person work for the organisation or employer for at least 40 hours per month and for an average of at least three months?
• Is the person financially dependent on the employer to which he/she provides services?
• Does the employer supply the necessary resources to the person to perform the work?
• Does the person only work for the employer, not providing other services to other people?

The guidelines above do not, however, include all employees. The stipulations do not apply to employees who earn more than R149 000 per year. If, however, the person earns more than this amount and a dispute arises regarding the person’s contract, any of the parties may refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) for a ruling.

Question 6: May my employer pay out my leave instead of me taking it?

Answer: An employer may not pay an employee for his leave instead of granting the employee permission to take the leave.

Question 7: May the employer cancel my leave?

Answer: The employer may cancel leave due to operational requirements.

Answer:

Night work is regulated in terms of Section 17 of the Basic Conditions of Employment Act. In terms of the Act, night work is regarded as service hours between 18:00 and 06:00. An employee may only perform night work if the employee receives an allowance or if his/her service hours are reduced. It must also be determined whether transport will be available between the workplace and the employee’s home.

An employer who requires employees to work between 23:00 and 06:00 must inform the employees verbally or in writing of this requirement. If the employee is illiterate, he/she must be informed in a language that he/she understands so that the employee can comprehend that there are certain dangers associated with night work. The employer also has the right to insist on a check-up by a medical doctor with regard to any dangers that could possibly be associated with the work. If the employee is in fact found to be unfit for night work, the employee can be transferred to a suitable day shift.

Night work could also be influenced by sectoral terms and collective agreements.

For more information regarding night work, call Solidarity’s legal experts at the service centre on 0861 25 24 23.

Question: What remuneration is an employee entitled to if he works on public holidays or Sundays?

Answer: First, there must be an agreement between the employee and the employer if the employee works on a public holiday or a Sunday. Second, the employee is entitled to double his usual remuneration.   

Question:

I am a flight attendant at a local airline. My senior gave me a form with the week’s flight schedule and asked me to check all the catering supplies for each flight. I politely pointed out to her that it is not in my job description and that I had been appointed as a flight attendant. I cannot remember the checking of supplies or administrative task being part of my duties. My senior referred me to some memorandum, which states that I have to perform such tasks and that I will face disciplinary action if I refuse. I am not aware of such a memorandum. What should I do now?

Answer:

Members often ask if their employer can force them to perform duties that are not part of their task description. We refer to such requirements as ad hoc requirements. Loosely translated, ad hoc means “for a specific purpose or circumstances”.

The first step an employee should take in this case is to refer to the service contract. Most service contracts contain a clause that states that an employee agrees to perform any additional duties, as required by the employer.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Question:
My employer has asked me to work on a public holiday. Am I obliged to work and what payment does the law prescribe for such work?

Answer:
No employer may force an employee to work on a public holiday, unless a prior agreement between the employer and the employee contains a different stipulation. An employee who does not work on a public holiday must receive his/her normal salary for the day. If the employee does work on a public holiday, he/she must receive double his/her normal payment.
How about payment on Sundays?
In terms of Section 16 of the Basic Conditions of Employment Act, an employee must be paid double his/her normal salary for working on a Sunday. However, if the employee does normally work on a Sunday, he/she must be paid one and a half times his/her normal salary. The employer and employee may, however, reach an agreement that the employee will get extra leave instead of extra payment.

Question: 

Is an employer entitled to change my conditions of employment unilaterally and what are my rights in this regard?

Answer:

If the employee benefits from such a change, nobody will be aggrieved.

However should the employer take away certain benefits from the employee, pay him less, and give him additional work, etcetera, the employee won’t be satisfied. Changed working conditions, technology, supply and demand and the financial success of an employer are all factors that could lead to a situation where the employer could have no choice but to restructure the employee’s conditions of employment.

A business could be in serious financial trouble and to prevent possible retrenchment of employees, an employer could change employees’ conditions of employment.  Employees’ benefits could be taken away and they could take on more tasks, etc.

In short nothing prevents the employer in such a case to change the conditions of employment of his employees, provided the changes are limited.

Changes to conditions of employment take place by means of a consultation process in terms of the Labour Relations Act to ensure that it is procedurally fair.

An employer cannot change the agreed on provisions of a service contract unilaterally. 

An employer cannot fail to pay a 13th cheque to an employee when the service contract contains a clause that explicitly determines that an employee should receive such remuneration.

The parties should negotiate a change to the service contract and when an agreement has been reached, the employer would be authorised not to pay the employee’s 13th cheque.

Employees should realise that refusal to accept such unilateral change to accept conditions of employment could lead to the danger of retrenchment. An employer could present amended conditions of employment to his employees as an alternative for dismissal during restructuring because of the employer’s operational requirements.

Should the employee refuse a fair alternative the employee could be dismissed. The employer should however follow the procedures, as contained in Section 189 of the Labour Relations Act.

Should the employer unilaterally change an employee’s conditions of employment for reasons other than the abovementioned, the Labour Court could be approached to issue an order against the employer in terms of Section 77A(e) of the Basic Conditions of Employment Act.

Question:

When does demotion take place?

Answer:

Demotion takes place when an employer unilaterally changes an employee’s conditions of employment with a reduction in salary or status or responsibility.     

Demotion has to be unfair to constitute an unfair labour practice. If there is agreement between the parties, it will still be demotion, but the demotion will not be unfair.   

Demotion could be regarded as not unfair in the following instances:

• Firstly to prevent service termination due to operational requirements. Should an employee not accept demotion, it has a negative effect on his entitlement to a severance wage.     
• Secondly as alternative to dismissal due to incompetence or misconduct.

Reduction in salary is not a prerequisite for demotion and even an unfair reduction in status or responsibility could constitute unfair demotion.

Phil Davel -

26-08-2010

Question: Is the employer obliged to provide pension fund and medical aid benefits?

Answer: Employers might be required to do so in terms of sectoral determinations and collective agreements, but in general pension funds and medical schemes are benefits that do not form part of the employee’s remuneration. Offering such benefits is at the discretion of the employer, who can also decide what percentage to contribute. It could, however, form part on an employee’s cost to company package. The employer and employee can also contractually negotiate for the pension fund and medical aid benefits to form part of the employee’s remuneration.

Although labour legislation does not specifically regulate pension funds and medical aid funds, Section 34A of the Basic Conditions of Employment Act does stipulate that if the employer deducts money for a benefit fund from an employee’s salary or pays over any money on behalf of an employee, the employer has to pay over the money within seven days after the deduction or the end of the period for which the payment has to be made. For the purposes of Section 34A, a benefit fund includes a provident fund, a pension fund, a retirement fund, a medical aid scheme or a similar fund.

The employee can also be compelled to join a pension fund and medical aid scheme. The employee can also be required to join a specific fund in terms of the conditions of employment in his/her service contract. In other words, except for the two above-mentioned cases, an employer does not have to provide pension fund and/or medical aid benefits. In such cases the employee will have to make provision for his/her own pension fund and medical aid scheme by applying to a financial services provider

The law

When a company is transferred or sold to a new owner as a going concern, employee contracts are transferred automatically without any amendment. The rights and responsibilities agreed upon between the former employer and the employees are transferred to the new employer, and include the duration of the term of employment, unless both parties agree to the terms of the contract.

The purchase of a going concern

When a new company purchases or takes over an existing company, the new employer assumes the responsibility for the rights and responsibilities in respect of the previous company’s employees. In this instance no agreement from the employees is required before transfer of their service contracts takes place.

Any measures taken before transfer by or in connection with the former employer, including the dismissal of an employee or the implementation of an unfair labour practice or unfair discrimination, will be regarded as being taken by the new employer.

Unless otherwise agreed to, the new employer is similarly bound by any collective agreement that was reached with a union or a bargaining council. The new employer is also bound by any arbitration award made in terms of the Act on Labour Relations, unless otherwise agreed upon.

An agreement between the former and the new employer regarding the transfer of the company must be reached, and all relevant information must be made public. The agreement must be in writing and must contain the date of transfer, as well as the following:

• Employees’ accrued leave with the former employer;
• the severance packages that would have been due to the transferred employees in the event of dismissal on the grounds of operational requirements;
• any other payments that would have been due to the employees by the former employer;
• which employer is responsible for which payments, and which employees would be entitled to any such payments; and
• the terms of the agreement between the former and the new employer.

Should the new employer wish to make any amendments to the conditions of service and the terms of employment contracts, the employer must first consult with the relevant employees and prior consensus must be reached about the amendments. Any conditions in the new contract not thus amended must remain as they stood in the former contract.

Should the new employer wish to retrench the employees who have been transferred, he/she will have to take into account the employees’ years of service with the former employer.

A contract of employment is a voluntary agreement between two parties in terms of which one party undertakes to render and subordinate his/her services to the other party in return for determinable remuneration. A contract of employment does not have to be in writing ‒ a verbal or tacit agreement is also valid.

Therefore, a written contract is not a requirement for bringing a valid employment contract into being, but it is advisable to record a service agreement in writing. A written contract provides clarity about what has been agreed upon and prevents possible disputes at a later stage.

The member can, therefore, not force his/her employer to provide a written contract, but it does not mean in the event of a verbal or tacit agreement that the contract between them is less favourable. The employee is still protected by the Basic Conditions of Employment Act which regulates the employment relationship. Section 29 of the Act stipulates that certain details must be provided to the employee upon commencement of his/her service, but these details do not constitute an employment contract.

An employment contract should state the following:

• The employer’s full name and address
• A description of the employee’s duties
• The site of the workplace as well as an indication of where the employee is expected to work, and where not
• Appointment date
• The employee’s working days and hours
• The employee’s remuneration and the way it is calculated
• Details of overtime payment
• Any other payments the employee may receive
• Any non-monetary remuneration the employee may receive and its value
• The date(s) on which the above payments are made
• Any deduction(s) from the employee’s remuneration
• Details of leave to which the employee is entitled
• The mutual notice period of termination of service and, if the person is engaged for a fixed term, his contract term
• A description of any commission or sectoral determination under which the employee may fall
• A list of any readily accessible documents in respect of the employee’s employment

Question:

I accepted a job offer in the medical industry and have to answer a question about trade union membership in my contract of employment. Should I indicate that I’m a member of Solidarity, or could the employer penalise me because of it/discriminate against me because of it?

Answer:

An employer has the right to ask an employer or a job applicant to indicate whether or not he or she belongs to a trade union. However, an employer may not discriminate against an employee or a jobseeker on the basis of his or her membership of a trade union.

For practical and operational reasons, employers often need to know which of their employees belong to trade unions. An employer has to know who represents its employees during consultations regarding retrenchments.

Employees or job applicants may be unwilling to reveal that they belong to a trade union out of fear of discrimination.

Section 5(2)(c) of the Labour Relations Act (LRA) prohibits an employer from discriminating against an employee or a person seeking employment on the basis of previous, current or even potential membership of a trade union, or for disclosing information that the employee or jobseeker may or has to supply to another person, including information such as membership of a trade union that is supplied to another person.

The generally accepted rule is that an employer is entitled to honest answers to all questions during an interview. Moreover, a job applicant may not withhold information that would have prevented the employer from entering into a contract with the applicant if the employer had been privy to it. The employer is therefore entitled to accurate information that is crucial for deciding whether or not to employ a jobseeker. If the employer discriminates against the jobseeker once his or her membership of a trade union has been disclosed, the merit of the case will be decisive and the jobseeker will have to prove on a balance of probability that his or her application was turned down or that any discrimination to which he or she was subjected was the result of the disclosure in terms of section 5(2)(c)

By Ettiene Pio

Question

I am a senior manager and my contract of employment prohibits me from being a member of a trade union.  How valid is this contractual prohibition?

Answer

Any contractual provision which is against a law is invalid and if such a provision also contravenes the Constitution of our country, it is unconstitutional as well.  Article 18 of the Constitution determines that everyone has the right to freedom of association and in chapter 2 of the Labour Relations Act the right of freedom of association is also ensured in detail.

Briefly, the right of freedom of association includes the right to: participate in the founding of a trade union; become a member of a trade union; participate in legal trade union activities; to participate in elections and to make yourself available for election as a trade union office bearer or official.

A senior manager is still an employee and definitely has the unrestricted right to join a trade union despite the explicit prohibition in his contract of employment.  Therefore, the prohibitive provision in the contract is illegal, unconstitutional and invalid.

However, each employee and specifically senior management also has confidentiality and contractual duties towards the employer.  When using your right to freedom of association, make sure that you do not make yourself guilty of a breach of contract or confidentially. The danger of this can, for example, especially lie in a situation where a senior manager wants to participate in wage negotiations as both a representative of the employer and as a trade union shop steward, or when confidential information is made available to trade union shop stewards which they may not obtain otherwise.  The right to freedom of association does not, therefore, exempt an employee from complying with fiducial and contractual obligations.   A senior manager may thus face disciplinary action if her behaviour as a member of a trade union amounts to a breach of fiduciary and contractual obligations.

Conclusion: Senior managers are welcome to join Solidarity as a trade union for individual and collective protection.  But be careful; once such a person accepts a position of leadership as a trade union shop steward or office bearer, his behaviour should still meet his fiducial and contractual obligations to the employer.

An employer has the right to ask an employer or a job applicant to indicate whether or not he/she belongs to a trade union. However, an employer may not discriminate against an employee or a jobseeker on the basis of his/her membership of a trade union. For practical and operational reasons, employers often need to know which of their employees belong to trade unions and to which unions they belong. Employers, for example, need to know who represents their employees during consultations regarding retrenchments.

Employees or job applicants may be unwilling to reveal that they belong to a trade union out of fear of discrimination. Section 5(2)(c) of the Labour Relations Act (LRA) prohibits an employer from discriminating against an employee or a person seeking employment on the basis of previous, current or even potential membership of a trade union, or for disclosing information that the employee or jobseeker may or has to supply to another person, including information such as membership of a trade union that is supplied to another person.

The generally accepted rule is that an employer is entitled to honest answers to all questions during an interview. Moreover, a job applicant may not withhold information that would have prevented the employer, had he known about it, from entering into a contract with the applicant. An employer is therefore entitled to accurate information that is crucial for deciding whether or not to employ a jobseeker. If an employer discriminates against a jobseeker once his/her membership of a trade union has been disclosed, the merit of the case will be decisive and the jobseeker will have to prove on a balance of probability that the rejection of his/her application, or any discrimination to which he/she was subjected was the result of the disclosure in terms of section 5(2)(c)

In SAFDWU v. Safcor Freight (Pty) Ltd t/a Safcor Panalpina and Another (D104/08) [2010] ZALC 107; (2011) 32 ILJ 415 (LC) the court adhered to the principle that you may not be discriminated against for being a member of a trade union, as it is a violation of section 5 of the LRA and an infringement of your fundamental rights as defined in sections 9 and 23 of the Constitution of South Africa.

 

Question:
I work in a bookshop in a busy shopping centre. I am expected to be on my feet the entire day to assist clients who need help. I am pregnant and experience problems as a result. My manager disciplined me because my appearance is not conducive to the image of the business and I was dismissed. Could the fact that I am pregnant be a disadvantage?

Answer:
Section 187 of the Labour Relations Act lists a few cases where an employee may under no circumstances be dismissed. If an employee is dismissed because of any of the listed reasons it automatically is an unfair dismissal. This means that the employer will not have any defence or excuse and that the employee has to be reappointed, or should the employee prefer, be compensated.

Legal question answered by Johan Roos, Solidarity Legal Services, Service Centre

Answer:

When a dispute arises over the fairness of a dismissal such a case should be referred to the CCMA or relevant bargaining council within 30 days after the employer has made the final decision to dismiss the employer.
Unfair labour practice should be referred to the CCMA or relevant bargaining council within 90 days after the employee became aware of the unfair labour practice. The procedure is dealt with by Section 191 of the Labour Relations Act.
If such a matter is not referred within the determined time, an application for condonation may be made. According to Rule 9(3) of the Rules of the CCMA the following has to be included in such an application:
• How much time has lapsed.
• The reason why the application is late.
• The merit of the case.
• Any other relevant factors or parties that may be influenced.
A CCMA commissioner will then decide whether the case will be accepted or not.
Solidarity members should contact the trade union as quickly as possible after the dismissal or unfair dismissal case, so that the trade union may discuss the case and provide the member with the necessary forms.
For any further enquiries with regard to the time in which cases have to be reported, please phone Solidarity’s legal experts on 0861 25 24 23.

Question:

I have been working as a receptionist from 1 July 2005. I was appointed as a relief worker, as the employer’s wife was absent due to illness. On 1 February 2006 I went on maternity leave. The employer now wishes to terminate my services as his wife has returned to work and is able to continue with her duties. Are they acting fairly towards me and what is owed to me?

Answer:

The details of the enquiry are vague. I assume that there is no written service contract between the employer and the employee and that the general labour legislations principles apply.

The position of the employee and employer is as follows:

1. She is not retrenched, as her services are terminated in terms of an agreement and not due to operational requirements.
2. She does not get paid maternity leave.
3. The employer may terminate her services without a notice period, as she is with unpaid maternity leave on the one hand and because the other receptionist has returned (as agreed) on the other hand.
4. She is only entitled to remuneration, accrued leave or overtime as agreed on.

Question:

I have won my arbitration hearing at the CCMA and the commissioner found that I had been unfairly dismissed.

My employer has now indicated that he wishes to review the arbitration order. On which ground could the employer have the order reviewed in the Labour Court? 

Answer:

Any party to a dispute who is dissatisfied with an arbitration order, may have such order reviewed. Revision however is not an appeal.

An arbitration order could in terms of Section 145(2) of the Labour Relations Act be reviewed in the following instances:

• When the commissioner is guilty of misconduct;
• Is guilty of gross negligence irregularities during the arbitration;
• Exceeded his authority; or 
• When the award has been obtained in a wrongful manner.

In case of a revision application to the Labour Court the applicant should bring the Commissioner’s “misconduct” to the attention of the CCMA, and the merit of the dispute plays a negligible or no role.

“Misconduct” of the Commissioner refers to the fact that the Commissioner has not acted correctly, in the manner expected from him, during the arbitration. In other words, the Commissioner’s order is not reviewed, but rather the manner in which such a finding was made.                            

Grounds for review could include that the Commissioner has refused a party to call witnesses, cross-examine witnesses, misconstrued evidence and much more.

The powers of CCMA-commissioners are explained in Section 142 of the Labour Relations Act and should the Commissioner not adhere to said powers, such behaviour could also be grounds for a review.

Of vital importance is the fact that the Commissioner’s analysis of the evidence brought before him has led him to a reasonable and justified finding.

Whether the final order is correct, is not relevant, as long as the Commissioner’s evaluation of the evidence is without error. The evaluation could lead to an incorrect ruling, but the order will not be reviewed by the Labour Court. It is important to note that review applications are heard in the Labour Court, which is a higher court.

Legal costs in such a court are substantially higher and applications should be evaluated with circumspection.

By Phil Davel

Question

My question is about my wife and her employer. She is being given trouble about creditors that she processed incorrectly, but she was never formally trained in the company’s creditors. She was merely shown what to do by the previous incumbent of the post before this person resigned. Her employer now wants to dismiss her.

Answer

The employer cannot dismiss your wife or disadvantage her[cause problems for her] without a fair and just procedure, especially in the case of poor performance and dismissal. The Labour Relations Act, under item 9 of Schedule 8, provides for a code of conduct that stipulates that an employee must know what the work standard or procedures entail and must be given the time and opportunity to achieve the required standard of work. Should she feel that het training was inadequate or ineffective, she could put this up as a defence.

The guidelines that must be considered before she is dismissed because she does not meet the required standard of performance are whether she knew what the required standard of performance entailed and whether she could be expected to be aware of it. She must, as was said, be granted a fair chance and time to achieve the required standard of performance. In addition, before she is dismissed, it must be clear that dismissal is the most suitable punishment for the transgression. In most cases, summary dismissal is not the most suitable punishment because the supposed problem could still be rectified by proper training and/or mentorship.

The employer therefore cannot simply dismiss her at the first transgression.

By Gerhard Hildebrand

Question

I was unfairly dismissed by my employer and referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).  However, before the dispute could be heard by the CCMA, the employer contacted me about a possible settlement.  I presented a settlement proposal to the employer and the employer addressed a letter to me in which they accepted the settlement I had proposed.  I am however no longer satisfied with the settlement and would like the dispute to come before the CCMA.  Can I continue with the dispute?

Answer

An agreement is reached when an offer is made to another party and that party accepts the offer.  Thus there is an offer and the acceptance thereof.  It is not necessary for the offer to be set out in writing and the acceptance of the offer also does not have to be in writing.

After the offer is accepted, the party who made the offer cannot retract it and the contractor can legally hold the offeror to the offer.  However, if the offeror withdraws the offer before it is accepted, no agreement is reached.  If the contractor makes a counter suggestion, no agreement is reached unless the suggestion is accepted by the other party.  After the offer is accepted, the contractor also cannot withdraw the offer.

According to the facts as set out in this legal question, an agreement was reached and the employer cannot continue with the CCMA dispute.  The dispute was settled by the agreement.  The employer will be able to content that, since a lawful agreement was entered into, the dispute no longer exists and as a result that the CCMA has no jurisdiction in the matter.

Question

I am a manager at my work and my empoyer indirectly obliges me to dismiss employees appointed under me for trivialities. Can they require me to do so and what would happen if I was dismissed for refusing?

Answer

This dispute shows many similarities with the case of Harding v Petzetakis Africa (Pty) Ltd (2012) 33 ILJ 876 (LC). In this case Ms Harding alleged that she had been automatically and unfairly dismissed because she had refused to dismiss certain subordinates when instructed to do so by the chief executive officer. The employer alleged that she had not been dismissed for the reasons supplied in her version, but because she had been incapable of doing her job.

However, the court accepted  Harding’s account and confirmed that she, on consideration of probabilities, could prove that the employer did dismiss her based on her refusal. She also proved that the employer drew the line immediately after she objected when the chief executive officer gave her the instruction and not, as alledged by the employer, after she refused to carry out the instruction. The employer’s argument that Harding was a senior manager and therefore had to carry out all instructions wal also invalid since the chief executive officer’s instruction was illegal. The court awarded 13 months’ salary  to Harding.

Therefore, it is clear that your employer cannot force you to dismiss someone. Dismissal based on this kind of refusal is likely to be unfair automatically. We would therefore advise you to contact Solidarity as soon as possible if you find yourself in this situation.

By Rizelle Botha

The suspension of an employee can be considered to be unfair in the following circumstances:

• When the suspension is merely a form of punishment and the employer never intended to hold a disciplinary hearing. This rule is confirmed in  Sajid v Mohamed NO & Others (2000) 21 ILJ 1204 (LC).
• When the employee is suspended for an unreasonable length of time, especially if periods of suspension are regulated and limited by the employer’s internal procedures.
• When the employer does not have a prima facie case (that is, a case that appears to be based on sufficient evidence) against the employee.
• When the employer does not follow his own disciplinary guidelines.
• When the employer does not afford the employee an opportunity to provide reasons why he or she should not be suspended. These reasons need not be presented formally and in writing – they may also be given verbally.

If an employee is unfairly suspended, he or she may file a complaint of unfair labour practice against the employer under section 186 (2)(b) of the Labour Relations Act (No. 66 of 1995). If you are a member of Solidarity and you are of the opinion that you have been suspended unfairly, contact us as soon as possible for prompt and thorough legal advice and assistance.

Question:

My son overslept one day and was late for work. His employer gave him three warnings for this one incident. They said the first two warnings were issued because he had been late for work and because they had been unable to contact him as his cell phone had been switched off. The third warning was given to him because they claimed he had lied about why he had been late for work. Does his employer have the right to give him three warnings?

Answer:

An employer is entitled to issue different warnings to an employee for violations that relate to the same incident. In such cases, the legal principle of double jeopardy should be taken into consideration, however. According to this principle, a person cannot be prosecuted or punished twice for the same offence.

Within the law it is not uncommon for various offences to result from one action. In criminal law, someone may, for example, be charged with murder, illegal possession of a firearm and illegal possession of ammunition if he is suspected of having killed another person with a firearm. Although this is an extreme example, the same principle applies across the board.

The employer acted fairly by giving your son more than one warning for related offences that emanated from the same incident – a warning because he was late for work, a warning because the employer could not reach him on his cell phone – if his conditions of service stipulate that the employer must be able to contact him at all times – and a warning for dishonesty. Further, the employer was within his rights if the warnings were issued in keeping with the company’s disciplinary policy and code and if a fair procedure was followed.

Question:

What information must the employer give to me in writing?

Answer:

When an employee is employed, his/her new employer must provide him/her with the following information:

1. Full name and address of the employer;
2. A description of the employee’s duties;
3. The address of the workplace and other places where the employee has to work;
4. The date of employment;
5. Information regarding work hours and work days;
6. Information about the remuneration package and how it is calculated;
7. Information about overtime payment;
8. Information about all other payments;
9. Information about any non-monetary remuneration as well as other benefits the employee will receive and the value of the benefits;
10. The date of payment;
11. Any deductions that will be made from the employee’s salary;
12. The leave to which the employee is entitled;
13. The notice period;
14. Information about council or sectoral determination; and
15. A list of any other documentation that is relevant to the employee’s contract of employment.

If any amendments are made to the documentation, the amendments must be made in writing and the employee must be informed. If the employee does not understand the documentation, it must be conveyed to him/her in a language he/she will understand. The employer must also keep all documentation for a period of three years following the termination of the employee’s services.

Phil Davel

Question:

I have been working as a graphic designer for the same boss for six months. To date she still has not given me an employment contract to sign and now I am worried that she’ll let me go at any point. Can I force her to give me a contract?

Answer:

The question is whether an employment contract is still valid in the absence of a written agreement. Stated differently: does the fact that the employment contract is not in writing make it invalid?

Firstly, it is important to define an “employment contract” in broad terms. An employment contract is:

1. a voluntary agreement;

2. between two parties (employer and employee), according to which –

a. one party (the employee) undertakes to render his/her personal services, subordinate to the other party (the employer);

b. in return for determinable remuneration in money or in value.

Nowhere does it state the requirement for a written contract. The above four points are the substantial elements of an employment contract and come to bear as soon as an agreement regarding the above has been reached. It is therefore clear that such an agreement can be verbal or even unspoken (an agreement can also be deduced based on behaviour) and does not necessarily have to be in writing.

Note that the common-law requirements of a contract still apply. These requirements are:

• Both parties must have reached a consensus;
• But must have contractual capacity – in other words, be legally capable of performing a binding act, such as concluding a contract;
• The agreement should not be contrary to any law or good morals;
• It should be possible to fulfil the rights and obligations of the agreement; and
• If there are any formal legal requirements, these must be fulfilled.

It is important to remember that although a written contract is not a prerequisite for a valid employment contract, it is definitely advisable to record the contract in writing. This could be done for the sake of clarity as well as to avoid any disputes or to make it easier to settle such disputes. However, an employee cannot force an employer to provide a written contract.

Nevertheless, an employer or employee is not without any remedy. In the absence of a written contract, the Basic Conditions of Employment Act (Act 75 of 1997) still applies and the employment relationship is regulated within this framework. That is why knowledge of this and other labour legislation is very important for our members.

Section 29 of the Basic Conditions of Employment Act stipulates that the employer is obliged to furnish certain details to the employee when his/her employment commences. This includes, among other things, details about remuneration or wages, the leave to which he/she is entitled, the date on which employment commenced, and payment for overtime.

Confusion could arise because these mandatory details are sometimes deemed to be equivalent to an employment contract. Although this could constitute an employment contract, it should be remembered that section 29 of the Act only places an obligation on the employer and that it does not arise from a voluntary mutual agreement between two parties. Therefore it is not an employment contract.

Question:

I recently started working at our town’s bakery. I work as the cash register and keep the shop shelves tidy. My parents advised me to request a service contract. Unfortunately it seems that the owner does not have such a contract.  He doesn’t regard it as essential. What should I say to him to get a contract from him?

Answer:

It is important that the employee obtains a service contract as soon as possible as this is the basis of the employment relationship. This is a voluntary agreement between two parties.

The employee could agree to make certain competencies available to the employer for a fixed or indefinite term. The employer agrees to remunerate the employee in a certain manner. The employer has the right to exercise control over the manner in which the employee’s competencies are used.

A service contract should meet certain requirements before it is valid:

• The parties should agree on the content of the contract
• The parties should have contractual capacity
• The contract should be legally practicable
• The contract should also be physically practicable.

Question:

My contract determines that a performance contract be drafted which determines what my performance bonus will be. The appraisal is done every six months.

This year we again had to draft a contract for our various projects. I have been told to stipulate in my contract that I would transfer my skills to my colleagues.

I would like to know whether this is legally acceptable. I am the only White person who has been instructed to do this. My contract lapses in February 2007.

I feel that I am an exception. I am one of a few people here who make a difference and I have just been informed that I have to take over a colleague’s work whose contract has been terminated. 

Answer:

In terms of the service contract it seems that the employee could scarcely refuse to transfer his skills or help out temporarily with his colleague’s work. Certain clauses in the contract authorise his employer to expand his job functions within reasonable limits.

The performance bonus is furthermore at the sole discretion of the employer and should the employee refuse to cooperate, he would have trouble qualifying for it.

In short: the content of the service contract is the definitive agreement between the employee and employer and there is no legal limitation on the content or meaning of the aforementioned clauses in these specific circumstances.

Question:

I have been working as a manager at a restaurant for a year. I don’t have a contract of appointment and receive a monthly salary from which tax and unemployment insurance are deducted. The employer now wants me to sign a contract as an independent contractor.

Answer:

The employee must not sign that contract, as the labour laws will no longer apply to him. He will not be able to claim leave, overtime payment and unemployment insurance and he would not be able to refer a case of unfair dismissal.

Question:

My date of appointment is 01/10/2004 and from that date I have not earned any pension. In December 2005 I brought it to the attention of the new manager and he immediately referred it to our head office, where it has been corrected from December 2005 without taking the previous year into account. Am I entitled to the interest on that pension?

Answer:

The employee has to refer to his service contract to determine whether the employer has to contribute to his pension.

If the contract states that the employer should contribute to his pension, the employer should make a retroactive payment.

Question:

My employer pressured me to sign a blank contract of appointment. I was not satisfied with the following clauses:

1. “The employee shall not, within a period of 12 months after the termination date, for any cause whatsoever in connection with any business similar to that conducted by The Company at the date of such termination, directly, or indirectly offer employment to or cause employment to be offered to or cause to be employed any person who is employed by The Company at the termination date or who was so employed at any time within 12 months immediately preceding the termination date”;
2. “The employee shall not, for a period of 12 months after the termination date, for any cause whatsoever either solely or jointly or together with or as employee, director, shareholder, member, manager, trustee or agent for any entity, directly or indirectly canvass business in competition with The Company from any person or entity forming part of the client base.”

Answer:

If the employee has been appointed permanently by his current employer, the employer cannot force him to accept the “Restraint of trade” part of the contract or agree to it if it has not been included in the initial conditions of employment.

When the employee leaves the employer’s service, he may for a period of 12 months not get involved in any competitive business. If he has agreed to it at the time of his employment, it is not unfair of the employer to expect that he signs a document of such a nature.

The employee has to remember that he is not obliged to sign any contract if he doesn’t agree with the content. The employer can therefore not force him to sign something that he does not wish to sign. To establish a valid contract there should be an offer and an acceptance, and it should not corrupt the morals of the community. When he accepts the offer, a valid contract comes into being.

The employee could discuss the fact that his details have not been entered on the contract and insist that it should first be completed before he signs it. He should also ensure that he initials next to the completed parts and get a copy of the signed contract to prevent changes to the contract without his knowledge.

Restraint of trade agreements

Compiled and written by Phil Davel

January 2011

Contents

1. Introduction

2. Definition and purpose

3. How the validity of restraint of trade agreements should be treated

4. Reasonableness: Two competing policies: The maxim pacta sunt servanda and section 22 of the Constitution

5. The onus of proof

6. Guidance on approaching the value judgment

7. Criteria the courts consider when determining the enforceability of a restraint of trade agreement

8. Restraint of trade and the Constitution

9. Remedies and procedural issues

10. Conclusion

 

The following is an example of a restraint of trade clause in a contract of service:

 

Restraint of trade

 

1.1   The EMPLOYEE agrees and undertakes that he shall not for a period of 12 months, and within a 100 km radius of the premises of the EMPLOYER, after the termination of his employment with the EMPLOYER, either jointly or alone or together with or as agent for any reason, company or association of any nature whatsoever directly or indirectly ‒

 

1.1.1      carry on the business or activity of the manufacture or distribution of hair and skin care cosmetic or related products;

1.1.2      be in any way interested in any such business or activity whether as principal, agent, shareholder or otherwise; or be associated or engaged in or in any way concern himself in such activity; or

1.1.3      finance or guarantee the obligations of any such business or activity.

1. Introduction

A restraint of trade clause is commonly included in an employment contract to enable an employer to protect his business from competition from ex-employees. In terms of a restraint of trade agreement, an employee is prevented from starting his own business in competition with his employer, or working for competitors for a specified period in a specified geographical area after termination of his employment contract.

 

At the outset it must be noted that restraint of trade arguments are not governed by hard and fast rules and are not regulated by labour law, but by the law of contract.

 

2.         Definition and purpose

 

In the matter of Petrofina (Great Britain) Ltd v. Martin, (1966) 1 Ch. 146, the court defined a restraint of trade as a contract in which one party (the employee) agrees with another (the employer) to limit or restrict his freedom in the future to trade with another external party who was not a party to the initial contract.

 

The Appellate Division (now the Supreme Court of Appeal) has described the objects and purpose of restraint of trade as follows:        

The legitimate object of a restraint is to protect the employer’s goodwill and customer connections (or trade secrets) and the restraint accordingly remains effective for a specified period (which must be reasonable) after the employment relationship has come to an end. The need for protection exists therefore independently of the manner in which the contract of employment is terminated and even if this occurs within consequence of a breach of contract by the employer. (Reeves and another v. Marfield Insurance Brokers CC and another 1996 (3) SA 766 (A))

In most cases the employee is in the weaker bargaining position and is not really able to negotiate the terms of the contract. The terms of the restraint clause may even be harsh and unfair and may restrict the employee from following her occupation even when she would not be competing with her former employer. The courts are aware of this problem and have formulated rules relating the validity and reasonableness of restraint of trade.

 

3.         How the validity of restraint of trade agreements should be treated

 

In common law, a contract is unenforceable if it is contrary to good morals (contra bonos mores) or against public policy. Despite there having been a lack of clarity at one stage as to how agreements in restraint of trade should be treated, the Appellate Division decided in Magna Alloys and Research (SA) (Pty) Ltd v. Ellis 1984 (4) SA 874 (A) that, in South African law, an restraint of trade agreement is prima facie valid and enforceable and will only be invalid and unenforceable if it is contrary to public policy on account of it unreasonably restricting a person’s right to trade or to work.

 

In arriving at the conclusion that restraint of trade agreements are prima facie valid, Magna Alloys rejected the English law approach, as reflected in the famous  judgment of Lord Macnaghten in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 (HL), which had been applied in a number of South African cases, that agreements in restraint of trade are prima facie against public policy and are therefore presumed to be invalid and unenforceable.

 

The result of Magna Alloys was summarised by Didcott J in J Louw and Co (Pty) Ltd v. Richter and others 1987 (2) SA 237 (N) as follows:

 

Covenants in restraint of trade are valid. Like all other contractual stipulations, however, they are unenforceable when, and to the extent that, their enforcement would be contrary to public policy. It is against public policy to enforce a covenant which is unreasonable, one which unreasonably restricts the covenanter’s freedom to trade or to work. In so far as it has that effect, the covenant will not therefore be enforced. Whether it is indeed unreasonable must be determined with reference to the circumstances of the case. Such circumstances are not limited to those that existed when the parties entered into the covenant. Account must also be taken of what has happened since then and, in particular, of the situation prevailing at the time enforcement is sought.

 

4.         Reasonableness: Two competing policies: The maxim pacta sunt servanda and section 22 of the Constitution

In determining the reasonableness or otherwise of agreements in restraint of trade, two competing considerations come into play. The first is that it is in the public interest that people should be held to their agreements. The second is that it is also in the public interest that people should be free to engage in economic activity. (See Sunshine Records (Pty) Ltd v. Flohing & others 1990 (4) SA 782 (A) at 794). The Constitution of the Republic of South Africa, Act 108 of 1996 protects the right to choose a “trade, occupation or profession freely”. It has been held, however, that the common-law rules relating to restraint of trade are not unconstitutional (discussed below). When a court considers whether to enforce a restraint of trade, it is required to exercise a value judgment on its assessment of the facts seen in the light of both common-law principles as well as constitutional values, the first essentially embodied in the maxim pacta sunt servanda (“agreements must be kept”), the second essentially reflected in the provision in section 22 of the Constitution that every citizen has the right to freely choose his occupation.

 

5.         The onus of proof

 

In Magna Alloys the following was determined when it is alleged that an agreement in restraint of trade is unreasonable: As with any other agreement, when a party to an agreement in restraint of trade attacks its validity, he bears the onus of establishing that it is unreasonable. Thus, in this case, the employee bears the onus of proving that the clause is contrary to public policy. Once the employer has established that (a) the restraint of trade existed and (b) it has been breached, the employee has to prove that the restraint of trade is unreasonable. The court will then consider the circumstances that prevail when the enforcement of the clause is sought and not when the contract of employment was concluded. If the court is unable to make up its mind on the point, the restraint will be enforced.

 

6.         Guidance on approaching the value judgment

Guidance on how to approach the value judgment in question can be found in the judgments of the Appellate Division in Basson v. Chilwan and others 1993 (3) SA 742 (A) and of the Supreme Court of Appeal in Reddy v. Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA). In the latter case, Malan AJA held:

 

In applying these two principal considerations, the particular interests must be examined. A restraint would be unenforceable if it prevents a party after termination of his or her employment from partaking in trade or commerce without a corresponding interest of the other party deserving of protection. Such a restraint is not in the public interest.
Townsend Productions (Pty) Ltd v Leech and Others 2001 (4) SA 33 (C) ([2001] 2 All SA 255) at 50J – 51B (SA); CTP Ltd and Others v Argus Holdings Ltd and Another 1995 (4) SA 774 (A) at 784A – C.

Moreover, a restraint which is reasonable as between the parties may for some other reason be contrary to the public interest. In Basson v Chilwan and Others,
1993 (3) SA 742 (A) at 767G – H.

Nienaber JA identified four questions that should be asked when considering the reasonableness of a restraint:

 

(a) Does the one party have an interest that deserves protection after termination of the agreement?

(b) If so, is that interest threatened by the other party?

(c) In that case, does such interest weigh qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive?

(d) Is there an aspect of public policy having nothing to do with the relationship between the parties that requires that the restraint be maintained or rejected? Where the interest of the party sought to be restrained weighs more than the interest to be protected, the restraint is unreasonable and consequently unenforceable. The enquiry which is undertaken at the time of enforcement covers a wide field and includes the nature, extent and duration of the restraint and factors peculiar to the parties and their respective bargaining powers and interests. Secondly, he stated that in order to properly reflect s 36 of the Constitution in cases involving restraints of trade, a fifth question had to be asked, namely

(e) ‘whether the restraint goes further than necessary to protect the interest’.

 

The court will not be limited to finding that the entire restraint of trade clause is enforceable or unenforceable. It may decide that part of the clause is enforceable or unenforceable and cut out the unreasonable parts of the clause and enforce the rest, without redesigning the restraint and developing an entirely different contract. In Den Braven SA (Pty) Ltd v. Pillay & another 2008 (6) SA 229 (D), after engaging in comprehensive legal research and considering  a number of earlier judgments, the High Court came to the conclusion that the principles of severability applicable in other contractual situations should also apply to restraint of trade clauses.

 

7.         Criteria the courts consider when determining the enforceability of a restraint of trade agreement

A restraint will conflict with public policy if its effect is unreasonable. In determining the validity and enforceability of restraint of trade agreements, a court considers a number of factors, a few of which are mentioned here:

 

i)          Proprietary and protectable interest

An employer who relies on a restraint of trade agreement in order to protect trade secrets and confidential information must show that the information or methods are unique and peculiar to his business and that such information is not public property or in the public domain (for example, through the internet). In this regard the Court in Hirt & Carter (Pty) Ltd v. Mansfield & Another 2008 (3) SA 512 (D) pointed out that the information which a former employer wishes to protect “must be objectively useful to a competitor in order to be confidential as between ex-employee and an ex-employer”. (See Rectron (Pty) Ltd v. Govender [2006] 2 All SA 301 (D) for a legal formulation of “confidential information”).

 

The essence and purpose of any restraint of trade agreement is to prevent the use of confidential information by a former employee to the detriment of the employer. In Reddy v. Siemens Telecommunications (Pty) Ltd the court held that it was not necessary to find that Reddy did or would actually use trade secrets and confidential information in his new employment – but that is was sufficient if he could do so.

 

However the court in Arrow Altech Distribution (Pty) Ltd v. Byrne and Others (9661\2007) [2007] ZAKZHC 33; [2008] 1 All SA 356 (D) agreed that there may be information that is so trivial or so easily accessible from public sources that it cannot be regarded as confidential:

 

I am of the view that the legal protection afforded to this type of confidential information is limited to a certain extent. It seems clear that the law, whilst prohibiting an employee from taking his employer’s customer list, or deliberately committing its contents to memory, nevertheless recognises that, on termination of an employee’s employment, some knowledge of his former employer’s customers will inevitably remain in the employee’s memory. This leaves the employee free to use and disclose such recollected knowledge, in his own interests, or in the interests of anyone else, including a new employer who competes with the old one.

 

Another such interest which may legitimately be protected by a restraint of trade is an employer’s trade connections. The position is summarised by Van Rensburg J in Branco and another t/a Mr Cool v. Gale 1996 (1) SA 163 (E):

 

As I see the position, when an employee has access to the customers of a business and is in a position to build up a particular relationship with customers, with the result that when he leaves his employer’s service he could easily influence customers to follow him and trade with him at the expense of his erstwhile employer, there is no reason why, in principle, a restraint should not be enforced to protect the employer’s trade connections.

 

In David Crouch Marketing CC v. Mark (J2499/08) [2009] ZALC 63, the Labour Court found that there had to be such a strong customer relationship and “attachment” that customers would “easily be induced” to follow the employee to the former employer’s rival, before enforcing the restraint. The court held the following:

 

Customer goodwill and trade connections may likewise be regarded as a protectable interest in circumstances where the former employee has built up a relationship with a customer to the extent that the customer will easily be induced to forsake the business of the former employer and follow the employee to his/her new business or employment. If the authorities referred to by the Court in Hirt (supra) is perused, it appears that the employer will have to show that there is a strong attachment between the customer and the former employee to such an extent “that when the employee quits and joins a rival he automatically carries the customer with him in his pocket”.

Before arriving at such a conclusion the court will consider several factors including ‒

• the frequency and duration of interactions with the clients;
• the employee’s personality;
• where the contact takes place; and
• the knowledge that the employee gained with regard to the clients’ needs and requirements.

Such a strong relationship was found to be the case in Bergh NO and Another v. Van der Vyver and Another (EL 526/2010)  [2010]  ZAECGHC 73 where the court ruled as follows: “[Therapists] develop relationships with their clients which are easily transported in the event that the therapist should, for whatever reason, take up employment elsewhere.” In this case, the first and second respondents, both beauty therapists, were interdicted from carrying on business in breach of their restraint agreement after the court found that the restraint was not unreasonable and contrary to public policy.

 

Other protectable interests can include goodwill, client lists (Bergh NO and Another v. Van der Vyver and Another), trade agreements and technological information.

 

ii)         Scope, area and duration of restraint

If the scope of a restraint of trade clause is broader than necessary, it will not be enforced. In the above case of Den Braven SA (Pty) Ltd, the court held that the two-year period of restraint was too long and that compliance with the geographical area provisions would enable the employee to work in Angola, Tanzania or the DRC only (these countries being the closest to home outside the area of restraint). The court also found that the terms, that is, the definition of a “customer”, were very wide. The restraint was consequently limited to a period of eight months and to KwaZulu-Natal only.

 

The court will judge the reasonableness of a restraint of trade according to merit. A period of three years was found to be reasonable in Dickinson Holdings Group (Pty) Ltd and Others v. Du Plessis and Another (7351/06) [2006] ZAKZHC 10 due to the nature of the employer’s activities.

 

In general, the weight of the onus on the person seeking to have a restraint declared unenforceable decreases as the stringency of the restraint increases with regard to the period of time or area over which the restraint operates.

 

iii)        Vagueness and the “one size fits all” approach

If a restraint of trade clause is found to be too vague, it will not be enforced. The courts will not enforce a blanket restraint that makes it impossible for an employee to work in any related industry. The more specific a restraint of trade is, the more likely the breach can be proved and the more likely the restraint will be enforced.

 

Also “standard form” or “one size fits all” restraint clauses may easily tip the scales in favour of the employee. Spilg J in Interpark (South Africa) Ltd v. Joubert and Another (09/29946) [2010] ZAGPJHC 39 concluded:

 

I am alive to the considerations favouring extensive severing of overbroad restraints mentioned in Den Braven. Nonetheless courts should be slow to indirectly sanction clear cases of over-reaching by reason of unequal bargaining strengths and where draftsmen demonstrate scant regard for rational provisions. The one size fits all approach may also expose the restraint as fundamentally flawed because no rational basis exists for the period, area or scope of the restraint being the same for both a key executive and for an administrative staff member.

 

iv)        Prevention of competition

When considering the criterion of public policy and in assessing the nature of a restraint to determine reasonableness, one needs to weigh up what the restraint of trade clause seeks to protect against what is seeks to prevent.

 

A restraint of trade will not be enforceable if its sole purpose is to prevent mere competition. Such a clause will be void. The party seeking to enforce the restraint must have a protectable interest. A person is entitled to take his skill away with him, even if he acquired it through his employer’s training, and he is free to earn a living in his chosen occupation. In Basson v. Chilwan and Others it was ruled that the mere elimination of competition was not an interest deserving of protection by way of a restriction of freedom of trade. The court accepted that a person is entitled to engage in useful economic activity and in so doing will contribute to the welfare of society by the exercise of these skills.

 

More recently the Supreme Court of Appeal confirmed the principle that a restraint will be considered to be contrary to public policy and therefore unenforceable if it does not protect some legally recognisable interest of the employer, but merely seeks to exclude or eliminate competition (Automotive Tooling Systems (Pty) Ltd v. Wilkens and Others 2007 (2) SA 271 (SCA)).

 

In Humphreys v. Lazar Transport Holdings Ltd & Another 1994 (4) SA 388 (C), the court found that a restraint aimed at protecting a person’s investment by eliminating competition was unreasonable and contrary to public policy.

 

v)         Golden handcuffs

‘Golden handcuffs’ is a system of financial incentives designed to keep an employee from leaving a company. A payment that accompanies a restraint contract is regarded as compensation for the employee withdrawing from the industry.

 

The court in Interpark (South Africa) Ltd v. Joubert and Another added considerable weight to these incentives when it said:

 

The mere elimination of competition as such is not a protectable interest, even if the restraint was required in order to protect an investment of capital or expenditure (whether in time or money) incurred in training the employee. There may be other satisfactory remedies that are more proportionate to the harm or potential harm suffered (e.g. the repayment of agreed training costs such as those incurred by airline pilots). Conversely there are cases of genuine money compensation directly paid by the employer to sterilise the employee from competing after the relationship is terminated, as is evident when key-personnel resign or retire …. Conversely, there are cases where the proprietary interest sought to be protected resulted in a negotiated restraint, where the employee was paid a considerable sum to sterilize his economic activities, which would make it difficult for a court not to hold him to his bargain.

 

By referring to a restraint agreement tied to a realistic golden handcuff as a “negotiated restraint…which would make it difficult for a court not to hold him to his bargain”, it seems as if the court, in such cases, would carefully consider the merits before condoning an employee’s breach of his promise and negotiated terms. In these cases, when a restraint is negotiated, public policy would most likely dictate that a contract entered into ‘with one’s eyes open’ be enforced.

 

vi)        The reasons for the termination of the service contract

The manner in which a contract of employment was terminated does not invalidate a restraint of trade per se, and is only one of many factors to be taken into account when considering the reasonableness of a restraint clause. Therefore, in the event of an unfair dismissal, a breach of contract by an employer or forced retrenchment, the employer may still enjoy protection if the court finds that, provided the circumstances and merits of the case, it would be reasonable and in line with public policy to enforce the restraint.

 

The Appellate Division in Reeves and Another v. Marfield Insurance Brokers CC and Another, Scott JA found as follows:

 

The legitimate object of a restraint is to protect the employer’s goodwill and customer connections (or trade secrets) and the restraint accordingly remains effective for a specified period (which must be reasonable) after the employment relationship has come to an end. The need for the protection exists therefore independently of the manner in which the contract of employment is terminated and even if this occurs in consequence of a breach by the employer…. It is difficult to imagine that in such circumstances it would be against good morals to recognise the restraint and that the employer should have to forfeit the protection which the parties have agreed he should have regardless of how the employment relationship is ended. Even where the breach on the part of the employer is less innocent, it must be remembered that the employee is always free to pursue his contractual or statutory remedies against the employer…. [The] loss to an employer in consequence of holding the restraint to be invalid may be considerable.

 

After examining various cases, including Info D B Computers v. Newby and Another 1996(1) SA 105 (W) (where the employer was prohibited from enforcing a restraint after unlawfully terminating an employment contract), the court came to the conclusion that there is no reason why the circumstances under which the contract of employment came to an end should not be included in considering the multitude of factors to be taken into account in the inquiry into the reasonableness of the restraint.

 

Where the wrongful termination by an employer is fraudulent, e.g. the employee is hired and fired with the sole object of imposing a restraint upon him, or otherwise amounts to a wrongdoing on the part of the employer which is wilful, i.e. it involves bad faith on his part, a court would on that ground alone decline to enforce the restraint…. But it does not follow that in the absence of fraud or wilful wrongdoing the circumstances in which an employee ceases to be employed are necessarily an irrelevant consideration when it comes to the question whether or not the restraint should be enforced.

 

However much would depend on the facts: “In appropriate circumstances, however, such conduct, e.g. the repudiation of the contract by the employer and the nature thereof, may well serve to tip the scales in favour of the conclusion that it would be contrary to the public interest to enforce the restraint.” (p 776)

 

Even though the termination of Reeves’s employment contract had been unlawful, the court found that the restraint of trade still applied to him.

 

With specific regard to forced retrenchments, section 189 of the Labour Relations Act 66 of 1995, as amended, makes provision for a consensus-seeking process on measures to, among others things, “mitigate the adverse effects of the dismissals”.

 

Subsections (5) and (6) state:

 

(5)        The employer must allow the other consulting party an opportunity during consultation to make representations about any matter dealt with in subsections (2), (3) and (4), as well as any other matter relating to the proposed dismissals.

 

(6)        (a)   The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing.

 

(b)   If any representation is made in writing, the employer must respond in writing.

 

These measures can include consultation on prior restraint of trade agreements in an attempt to alleviate their limiting effects on retrenched employees.

 

vii)       Duress

Sometimes an employee alleges that he was forced to sign a restraint of trade after he had signed an earlier contract of employment that did not contain a restraint of trade clause. In a such a case, the principals of the Law of Contract dictates that the employee who alleges that he was forced to sign a restraint for fear of jeopardising his employment, bears the onus of proving it. However, the Industrial Court in Marshall v. Vistech Communications (1994) 15 (ILJ) 1365 (IC) ruled that employers may not compel employees to sign restraint agreements after they have entered service.

8.         Restraint of trade and the Constitution

In the matter of Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v. Pearmain 2001 (2) SA 853 (SE) the high court commented on the constitutionality of covenants on restraint of trade. Section 22 of the Constitution Act 108 of 1996 entrenches the right to freedom of trade, occupation and profession. It provides as follows: “Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.”

 

The limitation clause in section 36(1) of the Constitution provides as follows: “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors”.

 

The court concluded that in so far as a restraint of trade is a limitation of the rights entrenched by section 22, the development of our common law is such that the requirements of a binding restraint of trade are compliant with the requirements laid down in section 36(1). Since common law restraint clauses are only enforceable if they are reasonable and not in conflict with public policy, the requirements of section 36(1) are met.

 

However, in terms of the Constitution, the onus will be on the party wishing to enforce the restraint of trade agreement to show that it complies with the provisions of the Constitution.

 

After determining the reasonableness of a restraint of trade agreement and balancing its provisions with the requirements set out in section 22, AJA Malan concluded in Reddy v. Siemens Telecommunications (Pty) Ltd, that a court must make a value judgment with two principal policy considerations in mind: The first is that the public interest requires that parties should comply with their contractual obligations and the second is that, in the interests of society, all persons should be productive and be permitted to engage in trade and commerce.

 

Both considerations reflect not only common-law but also constitutional values. Contractual autonomy is part of freedom informing the constitutional value of dignity, and it is by entering into contracts that an individual takes part in economic life. In this sense freedom to contract is an integral part of the fundamental right referred to in s 22. (par. 15)

9.         Remedies and procedural issues

There are a number of legal remedies available to an employer who knows or suspects that a restraint of trade clause has been breached. The most effective and widely used remedy is to insist on compliance with the contract and to enforce the restraint clause by applying for an interdict to prohibit the employee from acting in breach of the restraint.

 

In the founding affidavit the applicant who wishes to enforce the restraint should set out the circumstances under which the restraint clause was entered into (i.e. a contract of employment), the terms and provisions of the restraint, as well as any evidence that the restraint has been breached. The applicant should also set out the proprietary interest he alleges needs protection so that it can be meaningfully dealt with in the answering affidavit (see Interpark (South Africa) Ltd v. Joubert and Another at 59). The applicant need not set out grounds to prove that the restraint is reasonable.

 

In his answering affidavit, the respondent will seek to discharge the onus of proof in setting out facts to bring the court to the conclusion that the restraint is unreasonable.

 

The applicant may then, in a replying affidavit, set out rebuttable evidence in response to the respondent’s answering affidavit.

 

Before a final interdict will be granted, the applicant must show a clear right, harm or injury actually committed or reasonably apprehended, and the absence of similar protection by another ordinary remedy. (See Plascon-Evans Paints Ltd v. Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) for the approach to the determination of the facts in motion proceedings when a final interdict is sought.)

 

If the party seeking to enforce the restraint of trade agreement suffers damages, a claim for damages may arise. However, it could be problematic and difficult to prove actual financial loss or prejudice resulting from the breach of a restraint.

 

Furthermore, the competing company can under the same set of facts be interdicted if it committed the delict of competing unlawfully. (See South Africa BV (Incorporated in the Netherlands) t/a Institute for International Research v. Tarita and Others 2004 (4) SA 156 (W)).

 

 

10.      Conclusion

If you are a bound to a restraint of trade agreement, you need to be fully aware of the terms of the restraint and understand exactly what it prevents you from doing. If a situation arises where you consider undertaking an activity which may be in breach of the restraint of trade clause, you should give careful consideration to the consequences.

 

A party to a restraint of trade clause can rely on the following grounds in opposing the enforceability of the clause:

 

i)          The employer does not have a protectable interest. The principle enquiry in a restraint of trade argument is whether or not the party seeking to enforce the restraint has a protectable interest and, if so, whether that interest outweighs considerations regarding public interest. In Digicore Fleet Management (Pty) Ltd v. Steyn and Another (722/2007) [2008] ZASCA 105 the Supreme Court of Appeal found it only necessary to look at this requirement, declaring: “Suffice it to say that Steyn, in order to escape her contractual undertaking, must show that Digicore has no proprietary interest that is threatened by her working for a competitor of Digicore.” (at 7) The employer must therefore secure a protectable proprietary interest such as confidential information, trade secrets, trade connections and intellectual property.

 

ii)         The restraint is too vague or unreasonably wide in nature, geographical area or

time period.

iii)        The restraint is unenforceable in that it unreasonably prohibits the employee his or her constitutional rights, i.e. the right to earn a living. If the sole purpose of a restraint of trade clause is to prevent healthy and fair competition, the restraint will be rejected as contrary to public policy.

 

For employers it is important to bear in mind that South African common law recognises that various wrongful acts may attract an action for damages on the grounds of unlawful competition such as passing off one’s product to be that of a rival, misrepresentation as to a rival’s performance, or use of a competitor’s trade secrets. These wrongful acts exist independently of whether or not a restraint of trade agreement has been signed.

 

As complicated as things may seem, the core of an agreement in restraint of trade is clear: A restraint of trade agreement serves to protect an employer’s protectable proprietary interests.

 

Thus, in the absence of a restraint of trade agreement an employer may find it difficult to protect his business and intellectual capital from fierce competition in tough economic times. In Strike Productions (Pty) Ltd v. Bon View Trading 131 (Pty) Ltd and Others (10/21704) [2011]  ZAGPJHC 1 the applicant had failed to secure a restraint of trade agreement in a new contract of employment with the third respondent and was therefore unable to compete for his services in the industry. The court found against the applicant, stating:

 

Jacobs was not contractually bound by a restraint of trade agreement during the period of his employment with the applicant. Had their fiduciary relationship been governed by a restraint, the obligation to respect the confidentiality of any information imparted or received in confidence in regard to the applicant’s business secrets in respect of its alleged “IDOLS intellectual property’, would have been in all probability subject to such terms in the restraint… As there is no restraint of trade agreement between Jacobs and the applicant, the latter does not enjoy any contractual power to restrain Jacobs from using his skills in the free economy. It must follow therefore, that a new employer is free to poach an employee, in the absence of a restraint, as long as the employee is free to leave. Jacobs is therefore free to choose whom he should work for, without hindrance.

 

Employees, on the other hand, often sign a restraint of trade agreement at the start of their employment without giving proper thought to the consequences and the effect it may have on their career advancement and future employment. The rationale behind signing a restrains is usually “I signed because I needed the job.”  As noble and convincing as it may seem, the adverse effects of signing an agreement without proper guidance may well, in future, turn out to be a nightmare ‒ and a costly one.

 

Employers and employees alike should first obtain a professional opinion, preferably from an attorney who specialises in the Law of Contract, before drafting or signing an agreement in restraint of trade.

References

1.         ‘The restraint of trade argument rolls on…’ and ‘Restraint of trade’, by Derek Jackson for The South African Labour Guide.

2.         ‘Restraint of trade remains a hot issue’, Cape Business News, 5 February 2008.

3.         Constitutional effects, ‘Restraint of trade’, by Mervyn Dendy, De Rebus, July 2009.

4.         ‘Restraint of trade’, Essential Labour Law, Fourth edition, 2005, p46 by AC Basson, MA Christianson, C Garbers, PAK Le Roux, C Mischke and EML Strydom.

5.         ‘Restraint of trade agreements, are they still valid?’, by Luke Brodziak for Labour Protect.

6.         ‘Restraint of trade: When will these be reasonable?’, by Carl Mischke for IRNetwork.

7.         ‘Restraint of trade – The merits of enforceability’, by Andrew Overall for ee-Publishers.

8.         ‘When will a restraint of trade agreement be enforceable?’, by Ross Alcock, enSight, Employment Law, November 2006.

9.         ‘Contracts in restraint of trade – A brief overview’, by Larry Kallmeyer, Legal Magazine, 29 January 2001.

10.      ‘Dié beperking op werkers onredelik’ by Luther Backer, Rapport, 2007.

11.      ‘Restraint of trade agreements and jurisdiction’ The Annual Survey of South African Law, by T Humby and Dr C Theophilopolus, 2006.

12.      ‘Golden handcuffs: Make them stronger!’, by LawDotNews, 4 August 2010.

 

By Phil Davel

Question:

What particulars regarding my employment must be provided to me in writing?

 

Answer:

Section 29 of the Basic Conditions of Employment Act states that an employer must supply an employee, when the employee commences employment, with the following particulars in writing:

 

• The full name and address of the employer
• The name and occupation of the employee, or a short description of the work for which the employee is employed
• The place of work, and, where the employee is required or permitted to work at various places, an indication of this
• The date on which the employment began
• The employee’s ordinary hours of work and days of work
• The employee’s wage or the rate and method of calculating wages
• The rate of pay for overtime work
• Any other cash payments that the employee is entitled to
• Any payment in kind that the employee is entitled to and the value of the payment in kind
• How frequently remuneration will be paid
• Any deductions to be made from the employee’s remuneration
• The leave to which the employee is entitled
• The period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate
• A description of any council or sectoral determination which covers the employer’s business
• Any period of employment with a previous employer that counts towards the employee’s period of employment
• A list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each can be obtained

 

When any matter listed in the document changes, the written particulars must be revised to reflect the change and the employee must be supplied with a copy of the document reflecting the change. If the employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. The written particulars must be kept by the employer for a period of three years after the termination of employment.

 

By Phil Davel

 

In terms of common law, a fixed-term contract of employment is a contract of employment of which the termination is linked to a fixed/determined period, or a specific project or task. Dismissal therefore does not take place and a period of notice is not necessary, as an agreement on the termination of the contract is reached at its commencement.

 

With the inclusion of section 186(1)(b) in the Labour Relations Act, this common-law position changed, however. This section determines that dismissal takes place if an employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms, but the employer offered to renew it on less favourable terms, or did not renew it. Therefore, the employer must first follow the standard procedural and substantive steps (in terms of section 188) before the contract of employment can be terminated fairly. If the employer fails to do so, the employee can lay a complaint of unfair dismissal with the Commission for Conciliation, Mediation and Arbitration (CCMA) or the bargaining council.

 

Before an employee takes action on the strength of section 186(1)(b), it must be determined whether he expected that the contract of employment would be renewed (or that a temporary position would become a permanent one), and whether this expectation was reasonable. The test is objective. The employee must be able to show that a reasonable person in the same position would have reasonably expected the contract to be renewed and that this expectation was created by the employer. The facts will vary from case to case and must be considered as a whole. They may include: Renewal over a long period which was accompanied by verbal promises or undertakings by the employer and conduct (such as past practices) that suggested the contract would be renewed; the wording of the contract (although not sufficient); the availability of the post; the reasons why the fixed-term contract of employment was concluded initially; the nature of the work; and the manner in which the contract was terminated.

 

 

 

Question:

Am I deemed to be an employee, even if I don’t have a contract of employment at the company where I work?

 

Answer:

In terms of the Basic Conditions of Employment Act (Act 75 of 1997), “employee” means ‒

(a) any person, excluding an independent contractor, who works for another

person or for the state and who receives, or is entitled to receive, any

remuneration; and

 

(b) any other person who in any manner assists in carrying on or conducting the

business of an employer.

The following guidelines based on the Basic Conditions of Employment Act and the Labour Relations Act (Act 66 of 1995) can be used to determine whether someone can be deemed to be an employee:

• In what way is the person under another person’s control? In other words, does he have to carry out instructions that someone else gives him?

 

• Is the person’s working hours determined by an employer?

 

• Is the person part of the organisation he works for?

 

• Is the person working a minimum of 40 hours a month for at least three months at the organisation or employer?

 

• Is the person financially dependent on the employer for whom he provides services?

 

• Does the employer provide the person with the necessary resources to do the work?

 

• Does the person work for that employer alone?

The above guidelines are not applicable to employees who earn more than R172 000 per annum. If a person earns more than this amount and there is a dispute regarding his contract of employment, either party can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) for a decision.

Question:

I have been working for four years at Company A and I have given my four weeks’ notice before starting to work at Company B. The employer wants me to immediately leave the premises. Am I still entitled to the salary payment of my four weeks’ notice?

Answer:

If the employer does not want you to work your notice period, we need to look at section 38 of the Labour Relations Act. In terms of section 38, the employer is compelled to make a payment for the full notice period should he wish the employee to leave immediately. It is important to emphasise that the employee is obliged to give notice in terms of legislation and his employment contract.

Question:
I have been working on a fixed-term contract since 1 March 1999, but have never received an offer for permanent employment. My employer has embarked on an integration process, and we had to apply for our posts. I was not invited for an interview. What should I do? My current contract ends at the end of March 2012.

Answer:
A fixed-term contract is linked to a fixed or particular period, project or task. Upon the expiration of the period or upon completion of the project or task, the contract automatically terminates and it therefore does not amount to dismissal. No notice period is required.

However, in terms of section 186 (1)(b) of the Labour Relations Act, it would amount to dismissal if an employee could reasonably expect to have the fixed-term contract renewed on the same or similar terms, but the employer renews it on less favourable terms, or does not renew it. Before an employment contract can be terminated, the employer must take the requisite procedural and fair steps, failing which a claim for unfair dismissal can be brought to the CCMA or relevant bargaining council.

Therefore, before it can be established if dismissal as contemplated in section 186 (1)(b) has indeed taken place, it has to be established if the employee could have harboured an expectation that the employment contract would be renewed and, if so, if such expectation was reasonable.

It can be argued in the abovementioned case that renewal occurred over a long period of time, possibly accompanied by promises by the employer, which could have created an expectation that the contract would be renewed.

In the above case, the member’s fixed-term contract is valid until the end of March 2012, after which the contract will be terminated. No notice period is required. If the contract is not renewed, it will have to be established if the member would have been dismissed in terms of section 186 (1)(b).

A contract of employment is a voluntary agreement between two parties in terms of which one party undertakes to render and subordinate his/her services to the other party in return for determinable remuneration. A contract of employment does not have to be in writing ‒ a verbal or tacit agreement is also valid.

Therefore, a written contract is not a requirement for bringing a valid employment contract into being, but it is advisable to record a service agreement in writing. A written contract provides clarity about what has been agreed upon and prevents possible disputes at a later stage.

The member can, therefore, not force his/her employer to provide a written contract, but it does not mean in the event of a verbal or tacit agreement that the contract between them is less favourable. The employee is still protected by the Basic Conditions of Employment Act which regulates the employment relationship. Section 29 of the Act stipulates that certain details must be provided to the employee upon commencement of his/her service, but these details do not constitute an employment contract.

An employment contract should state the following:

• The employer’s full name and address
• A description of the employee’s duties
• The site of the workplace as well as an indication of where the employee is expected to work, and where not
• Appointment date
• The employee’s working days and hours
• The employee’s remuneration and the way it is calculated
• Details of overtime payment
• Any other payments the employee may receive
• Any non-monetary remuneration the employee may receive and its value
• The date(s) on which the above payments are made
• Any deduction(s) from the employee’s remuneration
• Details of leave to which the employee is entitled
• The mutual notice period of termination of service and, if the person is engaged for a fixed term, his contract term
• A description of any commission or sectoral determination under which the employee may fall
• A list of any readily accessible documents in respect of the employee’s employment

Question

May an employer terminate a signed, valid contract of employment, even if the employee has not yet taken up the position?

Answer

An employee is protected by labour legislation and judgments from the moment that a contract of employment is concluded, even if he or she has not yet physically begun to work for the employer.

In the case Wyeth (Pty) Ltd vs Manqele Mr Manqele was offered a position as a sales representative. The parties entered into a service contract in terms of which Manqele would start working on 1 April. However, before Manqele could do this he was informed by the employer that it was no longer prepared to employ him. Manqele referred the matter to the Commission for Conciliation, Mediation and Arbitration, where the commissioner found that he became an employee the moment he accepted the employer’s offer of employment.

The employer subsequently took the matter to the Labour Court on review. The Labour Court, on hearing the review application, confirmed that Manqele was a party to a valid contract of employment and therefore was an employee for the purposes of the Labour Relations Act.

The employer then took the matter to the Appeal Court. The court once more confirmed that Manqele became an employee the moment he signed the contract of employment.

An employer therefore cannot simply terminate a valid contract of employment, even if the employee has not yet physically taken up the position in question. This rule also applies to verbal agreements.

Question:

May an employer terminate a valid, signed contract of employment if the employee has not started working there yet?

Answer:

An employee is protected by labour legislation and case law from the moment a contract of employment has been signed, even if he or she has not yet physically started working for the employer.

In the case Wyeth SA (Pty) Ltd v Manqele, Mr Manqele had been offered a post as sales representative. The parties signed a contract of employment stipulating that Mr Manquele’s employment would commence on 1 April. Before Manquele started working there the employer informed him that they were no longer willing to employ him. Manquele referred the matter to the Commission for Conciliation, Mediation and Arbitration and the arbitrator ruled that he had become an employee the moment he accepted the employer’s offer of employment.

The employer took the arbitrator’s decision to the Labour Court on review. In the hearing of the review application the Labour Court confirmed that Manquele was a party to a valid contract of employment and therefore was an employee for purposes of the Labour Relations Act.

The employer then referred the matter to the Court of Appeal. This court confirmed that Manqele became an employee from the moment he had been contracted.

Therefore, an employer may not simply terminate a valid contract of employment, even if the employee has not yet physically started working for the employer. This rule also applies to verbal agreements.

Answer:

Ordinary working hours are set out in section 12 of the Basic Conditions of Employment Act. In terms of this section, the average number of ordinary hours of work in a week is 45, which comes to nine hours a day for a five-day workweek.

Lunch breaks are not included in ordinary hours of work, as they represent unpaid time. Moreover, an employer and an employee can agree on fewer than 45 hours a week, in which case it is crucial for the agreement to be put in writing.

Any time that is worked over and above 45 hours a week or the agreed number of hours, will be deemed overtime. Section 10 of the Act states that an employer may not require or permit an employee to work overtime, except in accordance with an agreement, or more than 10 hours’ overtime a week. In terms of such an agreement, the weekly overtime may be increased to a maximum of 15 hours. The agreement will apply for two months only. This type of agreement may not require or permit an employee to work more than 12 hours on any day.

By Phil Davel

 

Question:

What does the law have to say about overtime and working on Sundays? I am a senior financial manager with a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or even given any time off.

 

Answer:

Although sections 10 and 16 of the Basic Conditions of Service Act (Act 75 of 1997) provide for statutory remuneration for overtime as well as for work done on Sundays, section 6(1)(a) stipulates that these provisions do not apply to senior managers. Senior managers are regarded as employees who have the authority to employ and dismiss other employees as well as to represent the employer internally and externally.

 

In addition to this stipulation, the Minister of Labour also placed an income limit on the application of, among others, sections 10 and 16. On 13 May 2011 the limit was increased from R149 736 to R172 000 per year by Government Gazette 34287 3. This means that if an employee earns a gross salary of more than R172 000, he/she is excluded from the effects of these specific sections.

 

In cases like these, the service contracts of senior managers will determine the compensation to which they are contractually entitled and also whether payment for overtime applies to them and at what rate.

 

However, there are limits to overtime and working on Sundays in the case of senior managers. Section 48 of the same Act prohibits forced labour. An employer therefore cannot force an employee to work. The merits of the case will determine whether the work required is forced labour or not.

 

The answer to the legal question is therefore that the financial manager should realise that he/she may be required to work overtime without remuneration, provided that this does not amount to forced labour. This is because his/her remuneration package already provides for this and also because the Act excludes him/her from the required remuneration for overtime and working on Sundays.

 

For further information on remuneration and overtime, feel free to contact Solidarity’s legal experts at 0861 25 24 23.

 

By Phil Davel

Question:
What does the law have to say about overtime and working on Sundays? I am a senior financial manager with a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or even given any time off.

Answer:
Although sections 10 and 16 of the Basic Conditions of Service Act (Act 75 of 1997) provide for statutory remuneration for overtime as well as for work done on Sundays, section 6(1)(a) stipulates that these provisions do not apply to senior managers. Senior managers are regarded as employees who have the authority to employ and dismiss other employees as well as to represent the employer internally and externally.

In addition to this stipulation, the Minister of Labour also placed an income limit on the application of, among others, sections 10 and 16. On 13 May 2011 the limit was increased from R149 736 to R172 000 per year by Government Gazette 34287 3. This means that if an employee earns a gross salary of more than R172 000, he/she is excluded from the effects of these specific sections.

In cases like these, the service contracts of senior managers will determine the compensation to which they are contractually entitled and also whether payment for overtime applies to them and at what rate.

However, there are limits to overtime and working on Sundays in the case of senior managers. Section 48 of the same Act prohibits forced labour. An employer therefore cannot force an employee to work. The merits of the case will determine whether the work required is forced labour or not.

The answer to the legal question is therefore that the financial manager should realise that he/she may be required to work overtime without remuneration, provided that this does not amount to forced labour. This is because his/her remuneration package already provides for this and also because the Act excludes him/her from the required remuneration for overtime and working on Sundays.

For further information on remuneration and overtime, feel free to contact Solidarity’s legal experts at 0861 25 24 23.

 

By Phil Davel

Question:
What does the law have to say about overtime and working on Sundays? I am a senior financial manager with a well-known clothing group. It often happens that I work until late at night and even on Sundays, but I am not paid overtime or even given any time off.

Answer:
Although sections 10 and 16 of the Basic Conditions of Service Act (Act 75 of 1997) provide for statutory remuneration for overtime as well as for work done on Sundays, section 6(1)(a) stipulates that these provisions do not apply to senior managers. Senior managers are regarded as employees who have the authority to employ and dismiss other employees as well as to represent the employer internally and externally.

In addition to this stipulation, the Minister of Labour also placed an income limit on the application of, among others, sections 10 and 16. On 13 May 2011 the limit was increased from R172 000 to R183 008 per year by Government Notice No. R.429 in Government Gazette No. 34287 3. This means that if an employee earns a gross salary of more than R183 008, he/she is excluded from the effects of these specific sections.

In cases like these, the service contracts of senior managers will determine the compensation to which they are contractually entitled and also whether payment for overtime applies to them and at what rate.

However, there are limits to overtime and working on Sundays in the case of senior managers. Section 48 of the same Act prohibits forced labour. An employer therefore cannot force an employee to work. The merits of the case will determine whether the work required is forced labour or not.

The answer to the legal question is therefore that the financial manager should realise that he/she may be required to work overtime without remuneration, provided that there is an agreement and the unpaid overtime consequently does not amount to forced labour. This is because his/her remuneration package already provides for this and also because the Act excludes him/her from the required remuneration for overtime and working on Sundays.

For further information on remuneration and overtime, feel free to contact Solidarity’s legal experts at 0861 25 24 23.

Please note: This is a revision of a previous Legal Question and indicates the new income limit.