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LABOUR LAW - FAQ's             Back to home page

 

With over 10 million people formally employed in South Africa, Labour Law plays a very important role in our society. Attorneys who practise Labour Law, sometimes referred to as Labour Lawyers, have the requisite cross-discipline expertise to the benefit of both employers and employees where required-some of the functions performed by labour lawyers are:

  • Drafting employment contracts, codes of conduct, and employment equity plans.
  • Handling of disputes at the Commission for Conciliation, Mediation and Arbitration and Labour Courts
  • Chairing of disciplinary enquiries, intervention in strike action, lockouts, illegal work stoppages, including urgent interdicts.
  • General advice on dismissal relating to misconduct, poor performance and no fault ie retrenchment and company restructuring.
  • Commercial Law often impacts Labour Law so Labour Lawyers also offer services such as:
  • The establishment and operation of Sole Proprietorship’s, Partnerships, Private Companies and Section 21 Companies.
  • The drafting of Consultancy Agreements, Joint Venture Agreements, Management Agreements and Manufacturing Agreements entered into with various types of staff
  • Any documents which you need your employees to sign, such as Loan Agreements, Cessions, Letters of suretyship etc.
  • Criminal Law can also impact on Labour Law – Nevetec is a Company that specializes in obtaining SAPS clearance certificates and expunging criminal records, that may prevent you from obtaining the employment position you require, and you can read more here. Always remember to be honest about your qualifications and past history when applying for employment.
  • Mediation saves both time and money as it aims to avoid costly litigation proceedings. Equillore is one of the leaders in Alternative Dispute Resolution (ADR) in South Africa and offers mediation services in the Commercial, Public Sector, Labour and Consumer Law fields and you can view an overview of their services here.
  1. What is an Employment contract?
  2. What happens if the employer breaks the contract of employment?
  3. What is the situation if the employer wants to change the terms of the contract?
  4. What are the different types of employment contracts?
  5. What is meant by a ‘differential wage?’
  6. What constitutes ‘bonus pay?’
  7. Is an ex-employee entitled to a reference letter from their ex-employer?
  8. What constitutes dismissal?
  9. What constitutes an automatically unfair dismissal?
  10. When is a dismissal fair?
  11. What is the difference between ‘substantive fairness’ and ‘procedural fairness’?
  12. When can an employee be dismissed for misconduct?
  13. When can an employee be dismissed for incapacity?
  14. What constitutes retrenchment or redundancy dismissal?
  15. What steps can be taken if there is an unfair dismissal
  16. What are the steps to be taken to resolve a labour dispute under the LRA?
  17. What is conciliation?
  18. What happens if attempts at conciliation are unsuccessful?
  19. What is arbitration?
  20. Can either party appeal against an arbitration award?
  21. What is adjudication?
  22. How much compensation would I be ordered to pay if I dismissed my employee unfairly?
  23. What are the problems with garnishee orders?
  24. What are the injury on duty reporting procedures i.t.o. the Compensation Fund?
  25. How much sick leave and annual leave is an employee entitled to?
  26. Overtime- can an employee be compelled to work overtime?
  27. Are employees entitled to a lunch hour?
  28. Are employees entitled to more money if they work overtime?
  29. When can an employee claim benefits in terms of the Unemployment Insurance Fund? (UIF)

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1. What is an employment contract?

 

If you agree to work for someone, and that person agrees to pay you for this work, then you and the employer have entered into a contract of employment. The law says that the contract does not have to be in writing, but can be a verbal contract which is legal and enforceable.

A written contract is obviously preferable, and in any event an employer is required to provide all employees with a document at the start of their employment, which details, among more specific points, off:

  • Employer and worker details
  • Employment details
  • Payment details
  • Notice/ Contract Period
  • Grievance procedures
  • Probation details

A contract of employment must comply with the terms and conditions of:

  • Any Bargaining Council Agreement, collective agreement or sectoral determination, or

If a contract breaks any of these protective laws, it is not enforceable unless the conditions are more favourable to the employee. A good employment contract should provide a working practise that suits both employer and employee.

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2. What happens if the employer breaks the contract of employment?

 

  • If the employer breaks the contract of employment, then an employee can sue the employer in a civil case for breach of contract or can refer the dispute to the Department of Labour (for example if you have not been paid your annual leave or overtime payment) It is obviously easier to prove that an employer broke a contract of employment if the contract was in writing rather than verbal.
  • The employee is entitled to at least the terms and conditions contained in the Basic Conditions of Employment Act. If the breach of contract goes against a term or condition of the BCEA then the employee can go to the Department of Labour and lay a complaint.. The Department will investigate the complaint, and if it is found that the employer did not follow the contract of employment, then the Inspector can issue a Compliance Order which tells the employer to comply with the BCEA.

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3. What is the situation if the employer wants to change the terms of the contract?

 

  • An employer can change the terms of the contract even if the employee does not agree to the changes. But a change in contract is like a new contract and to change the contract the employer must give notice of the change to the employee and must negotiate the new terms and conditions with the employee.
  • If the employer and employee/s cannot agree about the changes in the contract, then the employer may go ahead and introduce the changes. If the employee accepts the new conditions and goes on working, then the new conditions become part of the contract.

If the employee does not agree to the changes, the employee can:

  • Refer a dispute to the CCMA or Bargaining Council in terms of Section 64(4) of the Labour Relations Act.
  • Refer a dispute to the CCMA or Bargaining Council for conciliation.
  • Refuse to accept the changes-if the employer then dismisses the employee it is an automatically unfair dismissal.
  • Choose to stop working for the employer. If the employee was forced to resign rather than be forced to accept the changes, it may be an automatically unfair dismissal.

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4. What are the different types of employment contracts?

 

There are 2 types of contracts:

1. Indefinite contracts

Most employment contracts are indefinite contracts which means that when an employee starts working, no-one knows when the contract will end. An indefinite contract can only be ended in one of the following ways:

  • By dismissal or termination of the contract of employment as a result of misconduct of the employee, or the incapacity of the employee or on account of retrenchment.
  • When the employee reaches the normal retirement age laid down by the company or the industry.
  • By the death of the employee.

2. Fixed Term Contracts

  • It often happens, particularly on the farms, that the employer goes to other areas to get people to work on the farm on a temporary basis. The employees then leave their homes and go to work on this farm. These employees may be referred to as contract employees.
  • Some farms have times when extra employees are needed. These times are called seasons. If an employee only works on the farm for a season, then he or she is called a seasonal employee.
  • For both contract employees and seasonal employees, the employers must pay the employees for the full contract time, even if there is no more work for the employers to do. If an employees contract employees for one year, then the employer must pay the employee for the full year, unless the contract ends due to the employee’s fault.
  • The employer cannot stop the fixed term contract earlier, unless the contract makes provision for this.

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5. What is meant by a ‘differential wage’?

 

  • If the employer tells an employee to do someone else’s job in a higher category of pay than the employee’s own job, then the employee should get the higher wage if he/she performs this work for an extended number of days. (Equal pay for work of Equal value)
  • An employer can ask an employee to do work below his or her own work category, but the employee should not get paid less than his or her own normal wage and also provided the employer is not doing this to make the employee’s life at work intolerable.
  • The BCEA doesn’t have a rule about differential wages. But if an employer refuses to pay the higher wage, the employee could take a dispute about an unfair payment to the Department of Labour or the Bargaining Council.

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6. What constitutes ‘Bonus Pay?’

 

‘Bonus Pay’ means monies paid to employees which is over and above their wages and overtime money. This is ‘extra money’ and is usually paid out at the end of the year, for example for good performance during the year, or for targets reached for the production or sale of goods.

Bonus must be paid in the following cases:

  • If an employer gave a bonus to the employees at the end of every year in the past, the employer created an ‘expectation’ in the employees that they will get the bonus every year. And it has become the custom to get the bonus. The employees then have a right to demand the same bonus every year. If the employer suddenly decides not to give the bonus the employees can claim the bonus as a custom and practise.
  • If it states in a contract of employment or collective agreement that the employee will get a bonus-the employer must pay the bonus as agreed. (unless it depends on the employee doing something the employee did not do)For example, if an employment of contract stipulates that the employer must pay a 13th cheque to an employee then the employer must pay this.

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7. Is an ex-employee entitled to a reference letter from the ex-employer?

 

A job reference letter is a letter from an ex-employer saying whether the employer thought the employee was a good employee or not.

The Basic Conditions of Employment Act says employees are entitled to a written certificate of service when the employee stops working for the employer. The certificate of service must set out:

  • The full name of the employer and employee
  • The jobs and functions that the employee was doing
  • The date that the employee began working and the date the employee ended work.
  • The wage at the time the employment ended, including payment in kind

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8. What constitutes dismissal?

 

Dismissal means:

  • An employer terminates a contract of employment with or without notice
  • A contract employee whose fixed-term contract is suddenly ended or renewed on less favourable terms, where the employee expected the contract to be renewed because it has often been renewed or because an expectation exists that the employment will be ongoing.
  • A woman who is not taken back into her job after maternity leave.
  • An employer dismisses a number of employees for the same reason (fro example for being on strike) and offers to re-employ one or more but not all.
  • An employee who was forced to walk out or resign because the employer made the working environment impossible to tolerate.
  • The employee leaves his or her work (with notice or without notice) because a new employer has taken over the business and is not paying the employee the same wages and conditions of employment he/she enjoyed before.
  • Employees have been retrenched. The employer must pay the employee severance pay of at least one week’s remuneration for every full year the employee worked for the employer. The payment must include the value of payment in kind. So the employee must get wages for the hours worked, plus any leave pay, plus notice or payment in lieu of notice, plus severance pay.

Employees in these circumstances are entitled to fair dismissal reasons and fair dismissal procedures under the Labour Relations Act. An employee could claim unfair dismissal through the CCMA or relevant Bargaining Council.

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9. What constitutes an automatically unfair dismissal?

 

 The following reasons for dismissal are invalid. The dismissal will be regarded as automatically unfair if the worker was dismissed for:

  • exercising any of the rights given by the LRA or participating in proceedings in terms of the Act.
  • taking part in lawful union activities.
  • taking part in a legal strike or other industrial action or protest action.
  • refusing to do the work of someone else who is on strike.
  • being pregnant, or any reason related to pregnancy.
  • refusing to accept a change in working conditions.
  • reasons that are due to arbitrary discrimination.
  • a reason relating to a transfer following a merger of the company with another organization.
  • where an employee is dismissed following a disclosure made by him/her in terms of the ‘Disclosure of Information Act’

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10. When is a dismissal fair?

 

The LRA has a good of good practise that employers must follow-the ‘fairness’ of dismissal is decided in 2 ways,
substantive fairness and procedural safeness. The chart below will give an indication if the dismissal

Unfair Dismissal

 

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11. What is the difference between ‘substantive fairness’ and ‘procedural fairness’?

 

Substantive fairness

  • Was there a fair reason to dismiss the employee?
  • Was dismissal appropiate under the circumstances?

The employer must have a proper and fair reason for dismissing the employee.

A ‘fair’ reason can be one of these:

  • Misconduct (the employee has done something seriously wrong and can be blamed for the misconduct.
  • Incapacity (the employee does not do the job properly, or the employee is unable to do the job due to illness, disability or lack of skill)
  • Retrenchment or redundancy (the employee is cutting down on staff or restructuring the work and work of a particular kind has changed.

Procedural fairness

Was there a fair procedure before the employee was dismissed?

  • The employee must always have a fair hearing before being dismissed. In other words, the employee must always get a chance to give his/her side of the story before the employer decides on dismissal.
  • If the employee feels the dismissal was unfair, either substantially or procedurally, then this can be referred to the CCMA for conciliation and thereafter arbitration if this is necessary.

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12. When can an employee be dismissed for misconduct?

 

Dismissals for misconduct will only be fair if:

  • The employee broke a rule in the workplace
  • The rule was reasonable and necessary
  • The employee knew of the rule, or should have known of the rule
  • The employer applied the rule consistently
  • It is appropiate to dismiss the employee for this reason, rather than taking disciplinary action or imposing a lesser penalty, such as a final warning.

Employees should not be dismissed due to minor mistakes, or for a first offence, unless it is very serious such as gross insubordination or dishonesty, intentional damage to the employer’s property, putting others’ safety at risk or physical assault of a co-employee.

Before deciding to dismiss the employee for misconduct, the employer must consider:

  • the employees circumstances (for example length of service, previous disciplinary record and personal circumstances)
  • the nature of the job
  • the circumstances in which the misconduct took place.

Fair procedures

Employees must keep records for each employee and if there is repeated misconduct the employer must give the employees warnings. A final warning for repeated misconduct must be given in writing.

There must be a fair hearing:

  • if the employee is a shop steward the employer must first inform the union.
  • the employee must know in advance what the charges against him or her are.
  • the employee must be given enough time to prepare for a hearing.
  • the employee must be present at the hearing and be allowed to state his/her case.
  • the employee must be allowed to be represented at the hearing by a co-worker or shopsteward.
  • the employer must bring all the witnesses against the worker to the hearing.
  • the employee should be allowed to call witnesses.
  • the employee must be given reasons for any decisions taken.

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13. When can an employee be dismissed for incapacity?

 

A dismissal for incapacity can be for poor work performance, physical disability or ill health or incompatibility/unsuitability. When deciding whether a dismissal for incapacity was fair or not, the following must be considered:

  • whether the employee failed to work to a required standard
  • whether the employee was aware of the standard
  • whether the employee was give a fair chance to meet the standard.
  • whether the dismissal is the appropiate outcome for failing to meet the standard
  • whether the incapacity is serious and what the likelihood is of an improvement
  • whether the employee could be accommodated in an alternative position should one be available.

Dismissal for poor performance will only be fair if the employer:

  • has given the employee proper training, instructions, evaluations, guidance and advice
  • assessed the employees performance over a reasonable period of time
  • investigated the reasons for continued poor performance
  • investigated ways of solving the problem without resorting to dismissal
  • gave the employee a chance to be heard before deciding to dismiss
  • considered employing the employee in an alternate and appropiate decision should one be available

Dismissals due (temporary/permanent) ill health or disability will only be fair if the employer:

  • investigated the degree and duration of the injury or incapacity.
  • considered ways of avoiding dismissal for example getting a temporary employee until the sick employee is better
  • tried to find alternative work for the employee to do
  • tried to adapt the work so the employee could still do it
  • gave the employee the chance to be heard before deciding to dismiss.

How ill or disabled the employee is (degree of incapacity) and for how long he/she is likely to remain ill or disabled (duration of incapacity), as well as the reason for the incapacity will be considered in deciding whether the dismissal was fair or not.

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14. What constitutes ‘retrenchment or redundancy dismissal’?

 

An employee is allowed to retrench employees for ‘operational requirements’ based on the employer’s ‘economic, technological, structural or similar needs

When an employer considers retrenchment, he or she must consult with the affected parties, must issue a written notice and invite the affected parties for consultations, and to make all the relevant information available in writing at the consultations, including:

  • Reasons for retrenchment
  • Alternatives considered including redeployment
  • Number of employees to be retrenched.
  • How it will decide which employees to retrench
  • When the dismissals will take place
  • Severance pay
  • What other help the employers will give the employees who will be retrenched
  • Possibilities of future re-employment for these employees
  • Number of employees employed by the employer
  • Number of employees that the employer has retrenched in the last 12 months

The employees that the employer is consulting with must be allowed to have their say on any of these issues. If the employer rejects what they say, he or she must give reasons in writing if the employees have submitted their representations in writing.

The consultation process is a ‘joint consensus seeking’ process. In other words the parties try and reach agreement on the different issues, such as:

  • Whether retrenchment is justified and ways to avoid retrenchments
  • Ways to reduce the number of people retrenched
  • Ways to limit the harsh effects of retrenchment
  • The method and criteria for selecting employees to be retrenched
  • The issue of severance pay

If employees and the employer cannot agree, disputes over the procedures for retrenchment can be referred to the CCMA for conciliation and thereafter the Labour Court. If the retrenchment involves a single employee, the employee can challenge the fairness of the dismissal at the CCMA rather than the Labour Court, if he or she wishes. A dispute about the amount of severance pay, is finalised at the CCMA by arbitration.

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15. What steps can be taken if there is an unfair dismissal?

 

If an employee thinks the dismissal was unfair, in other words that the employer didn’t follow fair procedures or there is not a ‘good reason’ for the dismissal, then the employee can try to challenge the dismissal. If the dismissal is found to be unfair, the employee will be able to get reinstated or re-employed, or get compensation money

Reinstatement means the employee gets the job back as if he/she was never dismissed. Re-employment means the employee gets the job back, but starts like a new employee.

Compensation-the employee is likely to get compensation if:

  • The employee does not want the job back
  • The circumstances surrounding the dismissal would make the relationship between the employer and employee intolerable
  • It is not reasonably practical for the employer to take the employee back
  • The dismissal is unfair merely because the employer failed to comply with a fair procedure but there was good reason for dismissal (procedural or substantive unfairness)

The employee can get up to 12 months wages as compensation for unfair dismissal. If it was an automatically unfair dismissal the employee could get up to 24 months wages as compensation.

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16. What are the steps to resolve a dispute under the Labour Relations Act?

 

dispute

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17. What is conciliation?

 

Conciliation is a process of bringing the two sides in a dispute together after they have reached a deadlock. ‘Deadlock’ means that after trying to negotiate, they still can’t resolve the problem. In conciliation, an independent third party is used to mediate between the two sides. Under the Labour Relations Act, the moderator is a Commissioner from the CCMA or Bargaining Council.

If there is a Bargaining Council covering the sector that the employer works in the dispute will be referred to the BC, and if there is no BC the dispute must be referred to the Commission for conciliation, mediation and arbitration (CCMA)

At the conciliation meeting, the commissioner meets with the two parties to the dispute to find ways to settle the dispute to everyone’s satisfaction.The employer and employee are free to agree to any solution to settle the dispute at a conciliation meeting. A certificate will be issued by the commissioner at the end of the meeting to say whether the dispute has been settled or not. The commissioner must try to resolve the dispute within 30 days of it being referred to the CCMA or Bargaining Council.

If the conciliation is successful, an agreement is reached which both parties must follow. If either party breaks the agreement, the other party may apply to the Labour Court to have the agreement made into a court order.

Employees may be represented by a co-employee, or a trade union office bearer or officialThe employer can be represented by an employee of the business or by a representative of an employers organisation. Attorneys are not permitted, although it will be to your benefit to consult with a labour lawyer before the CCMA hearing.

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18. What happens if attempts at conciliation are unsuccessful?

 

If the two parties cannot reach an agreement, or the employer refuses to attend the conciliation meeting, the commissioner will issue a certificate stating that the matter has not been resolved.

Each party can then refer the matter for arbitration at the CCMA or adjudication at the Labour Court depending on the nature of the dispute.

Disputes over these matters are referred to the CCMA or Bargaining Council for arbitration:

  • Unfair labour practices that do not involve discrimination.
  • Dismissals for acts of misconduct (the employer says the employee did something wrong)
  • Dismissals for incapacity (the employer says the employee can’t do the work properly)
  • Severance pay
  • Disputes concerning organizational rights for a trade union.
  • Alleged unfair retrenchment where the retrenchment involved an individual employee.
  • Breach of a collective agreement

Disputes over these matters are referred to the Labour Court for adjudication:

  • Disputes that involve discrimination
  • Retrenchments
  • Automatically unfair dismissals

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19. What is arbitration?

 

  • Arbitration means the two sides (or parties to the dispute) agree to use a third party to settle a dispute. A third party is someone who is not from the unions or employer’s side. The arbitrator acts as a judge to decide the dispute.
  • Under the Labour Relations Act, the arbitrator is a commissioner form the CCMA or Bargaining Council. After hearing what both parties have to say, the commissioner can make a ruling that is legally binding and must be accepted as both parties.
  • If the commissioner decides that the employer was wrong, the commissioner can order the employer to take certain steps or to pay compensation.
  • Employees can only be represented by a fellow employee, a lawyer where the case does not involve misconduct or incapacity dismissal, union official or union office bearer. Employers can only be represented by a lawyer where the dispute is not a misconduct or incapacity dismissal, an employee of the business, or a representative from an employer’s organisation.
  • In cases involving dismissal for misconduct or incapacity, lawyers are not allowed unless the commissioner specifically allows this.
  • Legal Aid will only be granted to an employee in cases where the Labour Relation Act allows for lawyers to be present, and cases where the commissioner specifically allows lawyers.

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 20. Can either party appeal against an arbitration award?

 

There is no appeal against an arbitration award.

But either party may ask the Labour Court to review the arbitrator’s decision, if they think:

  • The arbitrator exceeded his or her powers
  • There was something legally wrong in the proceedings
  • The arbitrator did not consider relevant issues in accordance with the law.

They must ask for a review within 6 weeks of receiving the arbitration decision.

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21. What is adjudication?

 

Adjudication is a formal court judgement, that is legally binding on all parties.

  • The Labour Courts are set up under the Labour Relations Act and are based at the High Court at each province. High Court judges and lawyers with labour law experience staff the Labour Court. The Labour Court has the same status as the High Court. Here is a list of High Courts in South Africa.
  • Employers and employees are entitled to be represented by a lawyer in Labour Court cases. Legal Aid may be granted to pay for the employee’s lawyer.
  • A Labour Appeals Court can hear appeals and has the same status as the Supreme Court of Appeal. If either party does not agree with the decisions of the Labour Court, they can appeal to the Labour Appeal Court.

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22. How much compensation could I be ordered to pay if I dismissed my employee unfairly?

 

The LRA distinguishes between different compensation awards on the basis of the type of unfair dismissal:

  • If the reason for the dismissal was fair, but the procedure was unfair, then the compensation must be equal to the salary the worker would have received for the period between the date of the unfair dismissal and the last day of the arbitration. The salary must be calculated in accordance with the worker’s salry as at the date of the dismissal. If the worker has delayed unreasonably in making his/her claim, then compensation then compensation cannot be ordered in respect of the period of unreasonable delay.
  • If the dismissal is automatically unfair then the compensation must be fair in all the circumstances, but equal to not more than twenty-four months salary.
  • If the reason for the dismissal was not a fair reason based on the worker’s conduct or capacity, or the employers operational requirements, then the compensation awarded must be fair, but not equal to more than twelve months of the worker’s salary.

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23. What are the problems with garnishee orders?

 

Garnishee orders are court orders requiring the employer of a person on debt to pay part of their wages with interest directly to the lender. Creditors can attach furniture and goods at a Company if that employer fails to execute the order.

The issuing of garnishee orders is governed by among other by the Magistrate Courts Act and the National Credit Act. Statistics released at a debt summit in 2012 show that there are about three million garnishee orders in circulation affecting between 10% and 15% of employees.

Recent research by law firm ENS in 2012 found ‘irregularities in the obtaining, serving and applying of emoluments (referred to as garnishee) orders and thus exploitation of debtors abound’. Of the 13 000 employees who had garnishee orders against them more than half of the orders were invalid or irregular, and that 39% of the deductions were being made against loans that had been paid or did not exist.

Problems include:

  • Consumers being forced to sign forms allowing a judgement against them if they default at the point of purchase
  • Lack of oversight at court level –where inexperienced or overtaxed clerks inadequately checking costs and supporting documents, or being issued in the wrong jurisdiction. Also allegations that court clerks accept bribes from credit providers or companies to ensure that garnishee orders are issued.
  • Employers, or their staff, who accept the orders without challenging the content or taking into account how many garnishee orders are already in place against an employee.
  • Being charged a higher interest per month than the accepted maximum 5%.
  • Excessive fees and charges. The council of the Law Society of the Northern Provinces is investigating a ‘major complaint’ against a ‘sizeable legal company’ where staff were stamping their own court documents and assigning fake file numbers; as well as charging legal fees for attendances, described as ‘at worst illegal and at best unnecessary’, or for fees for ‘calculating the balance’, ‘receiving payments’, and ‘reading the bank statements; or illegally adding a 25% contingency ‘success fee’ to the capital, where it gathers interest.
  • Recovery is outsourced to different agencies that obtain separate orders for the same debt.
  • No statutory cap on the amount to be attached, except for government employees where it is required that 40% of the salary be retained.
  • Charging a lower interest than the prevailing interest rates, meaning that consumers would never pay of their debt.
  • Being charged for, or not receiving statements.
  • No limit on the number of garnishee orders that can be issued to one consumer.

Attorneys are entitled to charge for the following:

  • The attorney may recover 10% collection commission on every instalment paid towards the capital and cost of an action, with a maximum amount of R300 per instalment.
  • Over R400 can be added for the emolument attachment order, obtaining a certified copy of a judgement, correspondence and attendances, which could involve charging to review an Act.
  • Also included is a maximum fee of R143 for tracing the judgement debtor and sheriff fees of up to R40 every time he/ she hands over the documents.

Consumers can protect themselves by dealing with reputable microlenders and retailers – be aware of interest on loans taken out, and do not sign forms on the same day as signing the loan agreement, consenting to a judgement should you default, which is illegal. It robs you as the debtor of the right to fight the amount being charged, or to challenge cost orders later, and ensures it is seen only by the clerk of the court, as a magistrate need not be involved. If your salary is subject to a garnishee order, and you suspect that there are illegalities or irregularities with it, ask your employer to check it for you. 

Employers must not be intimidated by the garnishee legal documents, and should learn to detect irregularities and should reject flawed orders. Employers whose employees are affected by garnishee orders may contact Summit Garnishee Solutionswho will investigate.

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24. What are the injury on duty reporting procedures i.t.o. the Compensation Fund?

 

Employee

  1. The employee has to report the accident to the employer as soon as possible after such accident has happened - Section 30 of the Compensation for Occupational Injuries and Diseases Act. If notice is not given to the employer/ Compensation Commissioner within 12 months after the date of accident the employee forfeits his right to compensation, as the claim cannot be considered in terms of the Act.
  2. Should the employer fail to report the accident the employee has to complete a Notice of Accident and Claim for Compensation (W.Cl.3)
  3. The employee must assist the employer in obtaining the medical reports as the employee has chosen the doctor, sees the doctor regularly and it is his (the employee's) case that has to be finalised.

Employer

  1. The employer has to report the accident in the prescribed manner - i.e. by completing the Employer's Report of an Accident (W.Cl. 2). The act requires that an accident be reported by the employer to the Compensation Commissioner within 7 days after the accident took place.
  2. Part B of the Employer's Report of an accident (W.Cl.2) is a carbon copy of Part A and should be handed to the employee to give to the doctor/hospital/chiropractor who is going to treat him. If an employer fails to report the accident, the doctor can report the case by sending a copy of Part B to the Compensation Commissioner. The employer will then be subpoenaed to submit Part A.
  3. Obtain First Medical Report (W.Cl.4) from the treating doctor - medical evidence plays an important part when liability for the compensation and medical expenses is considered.
  4. Obtain Progress Medical Reports (W.Cl.5) - when an employee is receiving prolonged medical treatment and is off duty as a result of injuries sustained in an accident, progress medical reports should be submitted on a monthly basis to the Compensation Fund to ensure that compensation in repsect to temporary total disablement is paid timeously.
  5. Final Medical Report (W.Cl.5) - should be submitted as soon as the employee's condition has become stable. The doctor has to describe the impairment  of function as a result of the accident, if any, to enable the Fund to assess the permanent disablement, if any.
  6. Resumption REport (W.Cl.6) - the form has t be completed by the employer immediately after the employee has resumed work. Where an employee is booked off duty for a lengthy period, interim reports must be submitted.
  7. Employee's banking details form should be submitted - should the claim qualify for any compensation, this form will be used to verify the claimant's banking details.

It is important that employers not wait for full documentation before reporting an accident. See also the Occupational Health and Safety Act.

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25. How much sick leave and annual leave is an employee entitled to?

 

Sick leave is a special leave which is regulated by Article 22 of the Basic Conditions of Employment Act granting employees paid leave when he/she is sick or injured. 

An employee may receive up to 6 weeks of paid sick-leave in a 36 month cycle. In the first 6 months an employee can receive 1 day of sick-leave for every 26 days worked. An employer may demand a medical certificate before paying the employee if he was sick 2 days or more at a time or if he was sick 2 times or more in 8 weeks. If an employee is absent for 2 days, he need not hand in a medical certificate. If however an employee is sick for more than 2 consecutive days, or is sick more than 2 times in 8 weeks, he must hand in a medical certificate before sick-leave can be granted. An employer may also demand a medical certificate from an employee who takes sick leave before or after a weekend.
Employers must ensure that their conditions of employment and internal policies provide for the correct actions should employees misuse their sick leave, as well as clauses that employees should timeously inform their employers regarding their absence and the date when they will return to work. Should employees not show their employees the requisite respect, the employer can initiate disciplinary proceedings against them.

Annual leave - according to the Basic Conditions of Employment Act, companies must ensure that all employees who work more than 24 hours per month have at least 21 calendar days (which translates into 15 working days) annual leave in every annual leave cycle. In addition South Africans have 13 public holidays a year. The value of entitled leave (the leave earned by employees, but not yet exercised) must be reflected as a liability in the company’s books, so is in effect a current liability for the company.
To manage the system most organizations do not allow employees to go into leave debt and if they do there is typically a maximum of 10% that can be borrowed.
Companies will also typically ensure that leave is taken within a specified time to ensure employees do not ‘bank’ too much leave, which is a liability for the company.
Your employer may determine when it is suitable for the business to grant you leave.
Workers are entitled to leave, but the leave must first be approved by the Company before the employee may take the leave. It is possible for the employer to refuse the leave depending on the Company’s operational requirements. Leave may only be taken with the consent of your employer. If you take leave without first being approved your leave, the employer may take disciplinary steps against you as the employee will be considered absent without permission. If the employer’s business closes on a specific time of the year this should be clearly laid out in the employment contract to avoid confusion at a later stage.

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26. Overtime- can an employee be compelled to work overtime?

 

No, this is allowed only by arrangement between the employer and employee. An employer must give the employee reasonable notice that they will be required to work overtime.

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27. Are employees entitled to a lunch hour?

 

Yes, but it is unpaid and is granted after 5 hours of continuous work. By agreement it may be reduced to 30 minutes. No person may work more than 12 consecutive hours daily, overtime included. An employee may not work more than 45 hours per week and is entitled to a rest period of 12 consecutive hours at the end of every work day and a weekly rest period of 36 consecutive hours.

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28. Are employees entitled to more money if they work overtime?

 

Yes, the maximum number of hours that can be worked overtime are 3 hours per day or 10 hours per week. Payment is at 1.5 times the rate of the normal hourly payment amount. If an employee works overtime on a Sunday they are entitled to double the normal hourly rate. This does not apply however if the employee usually works on a Sunday. In this instance the employer must pay 1.5 times the normal hourly rate. On public holidays payment is also double. Employees who earn more than the maximum determined by the Minister of Labour are not entitled to are not entitled to overtime pay-the current maximum is R205 433,90 per annum – employees who exceed this amount may nevertheless negotiate with their employers to receive overtime pay.

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29. When can an employee claim benefits in terms of the Unemployment Insurance Fund? (UIF)

 

 Employees can claim UIF when their employer is insolvent, your service contract has expired or you have been dismissed by your employer: 

• The Unemployment Insurance Act (act 63 of 2001) and the Unemployment Insurance Contributions Act, 2002 is applicable on all employers and employees with the exclusion off the following persons: 

• If you work less than 24 hours per month for an employer/
• Learners/students
• Foreigners (no SA citizens) who are working here on fixed contracts whose contracts have expired and who must now return to their country of origin.

Employees who currently receive an older person grant are since 7 February 2007 no longer exempt to contribute to the Fund.
You will therefore have to contribute to the Fund and will be able to claim from it. Remember that you can’t claim from the UIF if:

• You are already receiving benefits from the Compensation Fund. • You are already receiving benefits in terms of the Labour Relations Act.
• Your benefits have been suspended due to fraud.
• You resigned from your place of employment.
• You don’t report for work on the designated time or place.
• You refuse to accept training or advice.

Employers may deduct 1% of their employee’s total earnings. Commission is excluded from this amount.
The employer must also contribute 1% of all the employee’s earnings.
The total amount which must be paid over to the UIF every month is 2% of the employee’s total earnings.
Employees must therefore check their payslips to see whether their employer has registered them with UIF and is making the necessary monthly payments to the UIF.
If the employer has not registered them with the UIF they must take this up with the employer and insist on it.
 
 

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