Legal Questions

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.

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.

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.

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.

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:

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:

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:

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.

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

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:

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 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.

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.

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.

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.

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.

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.

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.

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.

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:

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.

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”).

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.

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 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.

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.

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.

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.

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:

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.

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:
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 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: 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: 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.

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.

<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.

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.

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.

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 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.

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.

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)).

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.

Question 7: May the employer cancel my leave?

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

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 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 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 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 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 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.

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: 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.

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 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: 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.

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:

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 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:
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 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.

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.

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.

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.

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.

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:

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: 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: 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”.

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.

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.

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

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.

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.

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:

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.

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.

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: 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:
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.

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.

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.

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.

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.

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.

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.

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: 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: 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.

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%. 

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.

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.

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:

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 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.

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.

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.

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.

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:

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.

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 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.

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:

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.

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.

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.

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:

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.

Question 7: May the employer cancel my leave?

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

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:

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: 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.   

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:

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.

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:

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 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 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.

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:

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.

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