LABOUR LAW



Contents

Introduction

The contract of employment

How can a contract of employment be used?
Changing the contract
Types of contracts

- Indefinite contracts
- Fixed-term contracts

Differential wage
Bonus pay
Long service awards
Job references

Laws about terms and conditions of employment

Wage regulating measures
How do you know which law applies to an employee?
Finding out an employee's terms and conditions of employment

Basic Conditions of Employment Act

Who is covered by the BCEA?
People earning above a certain amount
Part-time, casual and temporary employees
Piece-work
Free-lance or outsourcing
Variation of basic conditions

Individual contract of employment
Collective bargaining
Sectoral determinations
Ministerial exemptions

Prohibited employment

Child labour
Forced labour

Enforcement of the BCEAs

Summary of BCEA conditions of employment

Working times and pay

Flexibility in working hours
Payment in kind

Deductions

Daily and weekly rest periods
Leave

Annual leave
Sick leave
Family responsibility leave
Maternity leave
Unpaid leave
Absent without leave

Notice

Administration
Prohibition of victimisation and exploitation

Collective agreements

Workplace-based collective agreements
Enforcement of a workplace-based collective agreement
Bargaining Council Agreements

How are Bargaining Council Agreements made?
Enforcement of a Bargaining Council Agreement
Settling disputes under a Bargaining Council

Sectoral determinations

How are sectoral determinations made?
Enforcement of a sectoral determination
Settling disputes under a sectoral determination
Summary of the sectoral determination for farm employees
Sample contract of employment for farm employees
Summary of the sectoral determination for domestic employees
Sample contract of employment for domestic employees

Deregulation

Other laws that apply to terms and conditions in the workplace

Employment Equity Act

Occupational Health and Safety Act

Who does the OHSA cover?
The workers' duties
The employer's duties

Reporting accidents or incidents

Safety Representatives and safety committees
Enforcement of the OHSA

The Code of Good Practice on the handling of Sexual Harassment cases

The Merchant Shipping Act

Disputes and ways of settling of disputes

What is a dispute?
Dispute of interest
Dispute of rights

The Labour Relations Act

Who is covered by the LRA?
What is the LRA about?

Unfair labour practices

What steps can be taken if an unfair labour practice is committed?

Dismissals

What is a dismissal?
Automatically unfair dismissals
When is a dismissal fair or unfair?

1. Substantive fairness
2. Procedural fairness

CHART: Is a dismissal unfair?
Dismissal for misconduct
- Fair reasons
- Fair procedures
Dismissal for incapacity
- Fair reasons
- Fair procedure
Retrenchment or redundancy dismissal
- Fair reasons
- Fair procedure

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

Solving disputes under the LRA

Conciliation by the CCMA or Bargaining Council

How to refer the dispute to the right body
Apply for condonation if the referral is late
The conciliation meeting
Who can represent employees and employers in a conciliation meeting?

Successful conciliation
What happens if the conciliation agreement is not complied with?

Unsuccessful conciliation
Arbitration by the CCMA or Bargaining Council

What is arbitration?

How to refer a case for arbitration
The arbitration hearing
Who can represent employees and employers in an arbitration procedure?
Arbitration appeals

Adjudication by the Labour Court

What is adjudication?
How to refer a case for adjudication
Who can represent employees and employers in a Labour Court case?
Adjudication appeals

Taking industrial action

When is industrial action not permitted?
What procedures must be followed before industrial action is protected?
If an employer unilaterally changes conditions of employment
Employees' and employer's rights in protected industrial action

Trade unions

What is a trade union?
What are the aims of trade unions?
Paying for the union - subscriptions

The right of employees to form, join and take part in trade unions
Trade union rights in the workplace

Social Welfare and Benefits in the workplace

Unemployment Insurance Fund

Who is a contributor to the UIF?
Who is not covered by UIF?
How do employees become contributors to UIF?
How much do employees contribute to the Fund?
How much do employees get paid when applying for benefits?
When is a contributor not entitled to receive benefits?

Types of UIF benefits

Unemployment benefits
Illness benefits
Maternity benefits
Adoption benefits
Dependent’s benefits

How do employees claim UIF benefits?

Claiming unemployment benefits
Claiming illness benefits
Claiming maternity benefits
Claiming adoption benefits
Claiming dependent’s benefits

How to get copies of birth/marriage/death certificates

What if the UIF benefits are used up and the employee is still unemployed?
What if the application for normal benefits is refused?

UIF appeals

Further appeals

Termination of benefits

Compensation Fund

When can an employee claim Compensation?
Who can claim Compensation from the Fund?
Who contributes to the Fund?
When will the Fund not pay Compensation?
Occupational diseases and injuries

Diseases
Injuries
Motor vehicle accidents at work

What types of Compensation payment are made?

Temporary disability
Permanent disability
Death benefits

Who can claim compensation when an employee dies in the course and scope of duty?

Medical expenses
Additional compensation

Steps to claim disability

How is the Compensation money paid?

Temporary disability
Permanent disability

Objections and appeals

Employee’s tax

What is tax?
What is employee’s tax?
When must an employee pay tax?
How much tax do you pay?
What information must you give to employers?

Rebates
How to work out your tax
Tax on bonus pay and retrenchment pay
Part-time work and casual work
Tax assessments

Pension and provident funds

How does a pension or provident fund work?
Types of funds and benefits

Bargaining Council funds
Complaints about payments from pension funds

The Pension Funds Adjudicator

Who can make a complaint to the Pension Funds Adjudicator?
Time limits

Medical aid schemes for employees

Advantages and disadvantages of Medical Aid Schemes

Medical Schemes Act

Skills Development Act

The National Qualifications Framework (NQF)
The Skills Development Levy-Grant scheme
Paying the Skills Development Levy
How are the levies used?
Getting a Skills Development Grant
Skills Development Facilitators

Problems

PROBLEM 1: Money is deducted from an employee's wages
PROBLEM 2:Employee wants to claim notice pay and leave pay
PROBLEM 3: Employee is paid below the minimum wage
PROBLEM 4: Dismissed employee wants the job back (How to apply for reinstatement or compensation)
PROBLEM 5: Retrenchment
PROBLEM 6: Employee is dismissed for being drunk on duty and there is no previous record of drunkeness
PROBLEM 7: Employee is dismissed for being drunk on duty (The employee is suffering from alcoholism)
PROBLEM 8: Contract employees are dismissed before the contract is due to terminate
PROBLEM 9: Contract employees are not paid overtime
PROBLEM 10. Casual employee is not paid sick leave
PROBLEM 11: Contract employee’s contract has not been renewed
PROBLEM 12: Application for UIF benefits is too late
PROBLEM 13: Employer does not register employee with the Unemployment Insurance Fund
PROBLEM 14: Failing to sign the Unemployment register
PROBLEM 15: Long delay in paying compensation
PROBLEM 16: Employee does not get the correct amount of compensation money
PROBLEM 17: Employee is off work and is not getting paid
PROBLEM 18:Employee is injured on duty and loses the job
PROBLEM 19: Employee's compensation has been refused
PROBLEM 20: Employees develop an occupational disease

Model letters and forms

Model Contract of employment

MODEL LETTER 1: Letter of demand to employer for notice and leave pay
MODEL LETTER 2: Letter to Department of Labour about a notice and leave pay claim
MODEL LETTER 3: Letter of demand to employer for reinstatement
MODEL LETTER 4: Letter to UIF because benefits have not been paid
MODEL LETTER 5: Letter of appeal against the refusal to pay UIF
MODEL LETTER 6: Letter to Compensation Commissioner asking whether the accident was reported
MODEL LETTER 7: Letter to Compensation asking for reasons for the delay in paying

How to write a complaint to the Pension Funds Adjudicator

LRA Form 7.11 - Referring a dispute to the CCMA for resolution
Compensation Form WCL3

Checklists

Checklist for a labour problem
Checklist to prepare for arbitration
Checklist to prepare for arbitration on reinstatement
Checklist for problems about UIF
Checklist for compensation problems


Introduction

This chapter covers laws in South Africa which directly affect the working conditions of employees as well as disputes in the workplace and ways of resolving these.

We focus on the following laws that affect employers and employees.

Laws about terms and conditions of employment:
Basic Conditions of Employment Act No 75 of 1997 (BCEA)
Occupational Health and Safety Act No 85 of 1993

Disputes and ways of settling disputes:
Labour Relations Act No 66 of 1995 (LRA)
Employment Equity Act No 55 of 1998

Employee social welfare and benefits
Unemployment Insurance Contributions Act No 63 of 2001
Compensation for Occupational Injuries and Diseases Act No 130of 1993 (COIDA)
Skills Development Act No of 1998
Skills Development Levies Act No of 1999
Medical Schemes Act No 131 of 1998


The contract of employment

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. You are called the employee.

The type of work that you must do, hours of work, wages, a place to live (where appropriate), and so on can all be part of your agreement with your employer. These are called terms and conditions of employment. They are express terms of the contract.

Even if you and the employer did not talk about some terms and conditions of employment, for example, taking annual leave, and it is the custom that all employees take annual leave, then you can also take annual leave. This is part of your contract, even if you did not talk about it. These are implied terms of the contract.

The law says that a contract does not have to be in writing. If two people speak and they agree about the contract, then this contract is called a verbal contract. A verbal contract is also legal and enforceable.

A written contract is better. If all the conditions of the contract are written on a piece of paper, and the employer signs the paper, then you have proof of what was agreed. This is useful if ever there is a dispute about what was agreed between you and the employer.

Section 29 of the Basic Conditions of Employment Act says that, except for employees working less than 24 hours per month and employers who employ less than 5 people, the employer must give employees certain particulars in writing about the job; these particulars include:

If an employee can't read, the particulars must be explained in a language the employee understands.

If you have a contract, but you do not do what was agreed in the contract, then you break the contract. The law says that if one person breaks a contract, then the other person can use the law to force that person to do what was agreed or they can stop and withdraw form the contract. Breaking a contract is also called a breach of contract.

(See s 29(1)(a)-(p) of the Basic Conditions of Employment Act for particulars of employment that must be provided in writing to employees when they start their employment with someone)

A contract of employment must comply with terms and conditions of employment in the Basic Conditions of Employment Act (BCEA), Bargaining Council Agreement or collective agreementor Sectoral determination (depending on what the employee is covered by), and any other laws which protect employees such as the Labour Relations Act and the Occupational Health and Safety Act. If a contract breaks any of these protective laws, it is not enforceable unless the conditions are more favourable to the employee.

If an employee is covered by the BCEA, terms and conditions of employment in the BCEA override those in any contract of employment which are less favourable to the employee than those in the BCEA. In other words the contract cannot be less favourable to the employee than the conditions laid down in the law.

See Model Contract of employment.

How can a contract of employment be used?

If the employer breaks a contract of employment, then an employee can sue the employer in a civil court 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 easier to prove that an employer broke a contract of employment if the contract is in writing. If the contract is verbal, it is always better to have witnesses. If you don't have witnesses, then it is the employee’s word against the employer's word.

The employee is always entitled to at least the terms and conditions in the Basic Conditions of Employment Act (BCEA). If the breach of contract goes against a term or condition in the BCEA then an 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 has not followed the contract of employment, then the Inspector may issue a Compliance Order which tells the employer to comply with the BCEA. This is a much easier and cheaper way to deal with problems that fall under the BCEA.

Changing the contract

An employer can change the contract even if the employee does not agree to the changes. But a change in a contract is like a new contract. 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 decide to go ahead and introduce the changes. If the employer then just 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, then he or she can:

See Solving disputes under the LRA.

Note: Where a registered trade union has signed a collective agreement with the employer and where the employer changes this agreement without the agreement of the union, the union and its members can go to the CCMA or the Bargaining Council, if applicable, to claim that the employer has broken the collective agreement.This referral of the dispute will be in terms of Section 24 of the Labour Relations Act

Types of contracts

There are two types of contracts: indefinite and fixed-term (temporary) contracts.

Indefinite contracts

Most employment contracts are indefinite contracts.

This means that when a employee starts working for the employer, no-one knows when the contract will end but it is expected that the employment will continue until the employee reaches the retirement age of the company.

An indefinite contract can only be ended in the following ways:

Fixed-term contracts

If the employee and the employer both agree at the start of the contract that the contract is going to end within a fixed period or when certain work is completed, then it is a fixed-term contract.

Contract employees and seasonal employees are two kinds of employees with 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.

Usually the farmer and these employees have a fixed term contract for a specified time. The contract is usually made before the employee gets to the farm. If an employee has a contract with the farmer, then the conditions of that contract are the conditions of employment.

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. The seasonal employee knows when the contract starts and when the contract ends.

For both contract employees and seasonal employees, the employer must pay employees for the full contract time, even if there is no more work for the employees to do. If an employee's contract is for one year, then the employer must pay the employee for the full year, unless the contract ends because of the employee’s fault. If the contract is for one season, then the employer must pay the employee for the whole season.

The employer cannot stop the fixed term contract earlier than the contracted period unless the contract makes provision for this.

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 pay 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 unfair payment to a Bargaining Council if one exists for the industry, or the Department of Labour.

Bonus pay

'Bonus pay' means money paid to employees which is over and above their wages and overtime money. The law does not say that an employer must pay a bonus to employees. This is 'extra' money. It is usually paid out at the end of the year, for example, for good performance during the year, or for targets reached in production of goods.

Bonus pay must be paid in these cases:

Long Service Awards

The law does not say that employers must pay long service money to employees who worked for a long time for the same company. If the employee retires, it is up to the employer to decide whether to give any long service money to the employee.

Job References

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 (BCEA) says employees are entitled to a written certificate of service when the employee stops working for that employer. The certificate of service sets out the full name of the employer and the employee, the job/s that the employee was doing, the date that the employee began working, the date that the employee ended work, and the wage at the time that the job ended, including payment in kind (See S 42(a) – (g) of the Basic Conditions of Employment Act for details on what has to be included on the Certificate of Service).


Laws about terms and conditions of employment

There are different laws about conditions of employment. Employees' terms and conditions of employment may be covered by:

The Merchant Shipping Act covers conditions of employment for employees who are at sea within South Africa's territorial waters while members of the National Defence Force, the National Intelligence Agency, and the South African Secret Service are covered by different laws. The Occupational Health and Safety Act gives employees’ rights in health and safety at work.

See Merchant Shipping Act.
See Occupational Health and Safety Act.

Wage regulating measures

Collective agreements, Bargaining Council Agreements (BCAs), Wage Determinations and sectoral determinations (S/WDs) which regulate terms and conditions of employment are commonly called wage regulating measures. They contain different conditions of employment for different employees in different sectors. In other words all these agreements and determinations talk about a period of notice, but in one wage determination the notice period may be one week while in another it may be two weeks.

Below is a list of the more common aspects relating to conditions of employment which appear in all wage regulating measures:

If there are any particular terms or conditions of employment that are not specified by a Bargaining Council Agreement or a sectoral determination, then those terms or conditions of employment in the Basic Conditions of Employment Act will apply to employees.

How do you know which law applies to an employee?

All employees will fall under one of the above laws about conditions of employment. Many employees fall under more than one of these laws.

The laws work in order of priority. For example, if a Bargaining Council Agreement (or other centralised collective agreement) covers the work done by an employee, then that Agreement applies to that employee. If there is no Bargaining Council Agreement, then you must see whether a sectoral determination or Wage Determination applies. If no Bargaining Council Agreement or sectoral/Wage Determination applies, then the BCEA will apply, unless they are specifically excluded by the BCEA. .

An individual contract of employment may override the Basic Conditions of Employment Act provided it is definitely more advantageous for the employee and provided it does not affect certain ‘core’ rights which are identified in the Basic Conditions of Employment Act. These Core rights which cannot be changed be agreement, include normal working hours, regulations applying to maternity leave and sick leave and the prohibition against the employment age of children.

CHART: Finding out an employee's terms & conditions of employment


Basic Conditions of Employment (BCEA)

Who is covered by the BCEA?

All employees are covered by the BCEA (No 75 of 1997), except:

People earning above a certain amount

If a person is earning a gross salary of more than R172,000 per year (or R14,333  per month) then the following sections of the BCEA will not apply to them:

See Summary of BCEA conditions of employment.

Part-time, casual and temporary employees:

A part-time employee is permanently employed, but only works part of a working day or working week.

A casual employee is  employed on a short term basis, but only works part of a working week. An employee who works more than 24 hours during any month is now fully covered by the provisions of the BCEA including provisions for leave and sick pay, overtime and public holiday and Sunday rates.

A temporary employee is not permanently employed, but only works for a specific length of time or until a specific job is completed. This is often referred to as a ‘fixed term contract’ of employment.

See Fixed term contracts.

In most cases, part-time, casual and temporary employees will be entitled to the same benefits as other employees, but on a pro rata basis. They are excluded from some provisions of the BCEA, for example, they are not entitled to family responsibility leave.

Generally the temporary or casual employee will be entitled to one days annual leave for every 17 days worked and one days sicl leave for every 26 days worked for the3 same employer.

Piece work

Piece work means that an employee is not paid according to the hours that he or she works. The employee is paid for the number of items produced. For example, seasonal farmworkers may be paid for the amount of fruit they pick provided they earn at least the minimum wage laid down for that industry or sector.

Freelance or out-sourcing

An employer may pay someone who is not an employee in the company,  to do work. This person is not an employee, but is running their own small business and is often referred to as an independent contractor. The contractor is generally paid for producing an agreed level of work or providing a service and is not supervised or controlled by the employer. The independent contractor is not covered by the BCEA. For example, Sakumsi cuts patterns for dresses. He pays Trevor to sew the pieces together. Trevor works from his house. Trevor is not employed by Sakumsi, and Sakumsi does not have to make sure that Trevor's pay and working conditions are according to the BCEA.

Variation of basic conditions

Certain rights in the BCEA are fundamental and will not be able to be varied (for example, the prohibition on employing child labour).

In a collective agreement, for example a Bargaining Council Agreement, workers may agree to conditions that are different  for them than the BCEA conditions, as long as the agreement is consistent with the purpose of the BCEA and does not give them less protection than they had under the BCEA, nor reduce an employee’s annual leave (to less than 2 weeks), maternity leave or sick leave.

Employees may be covered by the BCEA, but have terms and conditions of employment which vary from those in the BCEA. The BCEA allows for the following ways of varying basic conditions of employment:

So a employee who is covered by the BCEA has the conditions of employment as specified in the Act, unless:

See Chart: Finding out an employee’s terms and conditions of employment.

Individual contract of employment

The contract may have different conditions to those in the BCEA, as long as they are more favourable to the worker than the BCEA. The BCEA sets out the minimum conditions of employment. Any contract of employment must at least comply with all the provisions of the BCEA. If a contract breaks any part of the BCEA, (and a variation order has not been obtained from the Department of Labour) , it is not enforceable and the BCEA conditions override the conditions in the contract.

See The contract of employment.

Collective bargaining

The BCEA and the Labour Relations Act aim to promote collective bargaining, and therefore allow variation of certain specified conditions through collective bargaining between an employer and employees who work for that employer. They can reach a collective agreement.

A collective agreement under the BCEA may have different conditions to those in the BCEA, as long as they are more favourable to the employee than the BCEA. The BCEA sets out the minimum conditions of employment. Any agreement must at least comply with all the provisions of the BCEA. If an agreement breaks any part of the BCEA, it is not enforcable and the BCEA conditions override the conditions in the agreement.

There are also centralised agreements (Bargaining Council Agreements) under the Labour Relations Act. In centralised collective bargaining , employees may agree to conditions that are different  to the BCEA conditions. This may be because in exchange they gained something else they wanted more.

See Collective agreements.

Sectoral determinations

The BCEA provides for the establishment of an Employment Conditions Commission. They investigate conditions in a particular industry or sector and make recommendations to the Minister of Labour. When the Minister approves a recommendation from the Commission, this is published in the Government Gazette as a Wage determination or Sectoral determination.

See Sectoral Determinations for farmworkers.

See Sectoral determination for domestic employees.

Ministerial exemptions

The Minister of Labour may override the provisions of the BCEA for particular groups of employees

Prohibited employment

Child labour

The Department of Labour and state prosecutor will be primarily responsible for enforcing the rules about child labour. To employ children is a criminal offence.

Forced labour

No-one may force employees to work (for example, an employee was unfairly dismissed and was also not paid leave pay). This is a criminal offence.

Enforcement of the BCEA

The Department of Labour is responsible for enforcing the BCEA. The Department appoints inspectors who have wide powers to make sure employers obey the Act.

An employee whose employer is not obeying the BCEA can complain to the Department of Labour (not the CCMA). A Labour inspector will investigate. If the inspector decides the employer is breaking the law, he or she will try to get a written promise from the employer to obey the BCEA. This is known as an ‘Undertaking’ from the employer.

The inspector may issue a 'Compliance Order' to employers who do not obey the BCEA. If the employer ignores the compliance order, the Department of Labour must refer the matter to the Labour Court to force the employer to obey. Employers are also entitled to appeal against compliance orders to the Director General of Labour or the Labour Court.

If an employee and employer are in a dispute about a matter covered by the Labour Relations Act and they are busy trying to resolve the dispute at the Commission for Conciliation, Mediation and Arbitration (CCMA), then the CCMA can also order the employer to pay money that is owed to the employee in terms of the employee's BCEA rights. For example, if a dismissal is being contested at the CCMA, the CCMA will be able to order an employer to pay outstanding leave  owed to the employee. The law is made like this just to simplify procedures and to avoid the matter having to go to both the Department of Labour, the CCMA or the courts.

Employees can also make their own civil case in the Magistrates Court and the Small Claims Court to get money that is owing to them.


Summary of BCEA conditions of employment

Working times and pay

Even though overtime is voluntary, if the employee agreed in the original contract to work over time when necessary, then this overtime must be worked. If the employee refuses to work overtime then he/she is in breach of the contract and the employer can take disciplinary action against the employee.

An employer who is employing less than 10 employees only needs to pay overtime at time and a third of the normal wage. The employer can also agree with the employee to work up to 15 hours overtime during a week as against the normal ten hours.

Note: While individual overtime is voluntary (subject to an agreement) a joint refusal by a number of employees to work normal overtime, will probably constitute a strike or industrial action.

Or

If it is normally part of a worker’s normal shift and job to work on a Sunday, then s/he must be paid at a rate of time and a half his/her normal hourly rate.

The public holidays are:

1 January New Year's Day

21 March

Variable

Human Rights Day
Good Friday
Family Day
27 AprilFreedom Day
1 MayWorkers' Day
16 JuneYouth Day
9 AugustNational Women's Day
24 SeptemberHeritage Day
16 DecemberDay of Reconciliation
25 DecemberChristmas Day
26 DecemberDay of Goodwill

Flexibility in working hours

The BCEA allows for some flexibility in the arrangement of working hours, by agreement between the employer and workers (collective agreement) or one worker (individual agreement):


Payment in kind

Wages can be paid partly in kind if the law provides for this. Payment in kind means that an employer pays an employee his or her wage through giving him or her housing, use of land or food, as well as money.

However, this can only be done if the Minister of Labour decides that payment in kind should apply to a certain sector. The Minister will also decide what formula to use to determine the value of the payment in kind.

Deductions

Deductions from wages (other than those required by law) are not permitted without the written consent of the worker.

The deductions required by law which an employer makes from the wages of a worker are as follows:

The lawful deductions which an employer can make from the wages of a worker, if the worker instructs the employer in writing to make the deduction, are as follows:

The amount that can be deducted can be equal to (but not more than) 25% of the normal wage to offset losses.

Often employers also make unlawful deductions from workers' wages. Examples are when:

If an employer wants to deduct a fine from a worker's wage, to compensate the employer for loss or damage, the employer can only deduct the fine if:

Daily and weekly rest periods

The agreement can also provide for a rest period of at least 60 consecutive hours (hours in a row) every two weeks.

Leave

Leave can be annual (yearly) leave, sick leave, maternity leave, family responsibility leave, or unpaid leave.

Annual leave

Sick leave

Family responsibility leave

Maternity leave

See UIF Maternity benefits.

Unpaid leave

An employer may agree to let a employee take extra days of annual leave, or the employee may be sick for longer than the paid sick leave. Then the employer does not have to pay the employee for these days.

Absent without leave

If a employee takes leave without getting permission from the employer and is not sick, the employer does not have to pay the employee for the time taken off. If the employee takes off many days in a row without permission and without communicating with the employer (normally more than 4 consecutive days), , the employer may presume that the employee has deserted (left without giving notice) his or her employment. The employer may employ someone else to do the job. In this case the employer may dismiss the employee and will not be required to give  the employee notice. But if the worker returns, fair dismissal rules must be followed.

Notice

See Problem 2: Employee wants to claim notice pay and leave pay.

All employees are entitled to a written certificate of service when the employee stops working for that employer. The certificate of service sets out the full name of the employer and the employee, the job/s that the employee was doing, the date that the employee began working and the date that the employee ended work, and the wage at the time that the job ended, including payment in kind.

Administration

Except for domestic employee or employee who work less than 24 hours a month:

Before the job starts, the employer must give the employee written particulars about the job, including:

This document is like a contract of employment, but the worker doesn't have to sign it. If a employee can't read, the particulars must be explained in a language the employee understands. An employer who employs fewer than 5 employees does not have to provide the above details.

The BCEA says an employer must hand the worker his or her wages with certain details on a payslip, including:

The BCEA says the employers must keep the following records:

Prohibition of victimisation and exploitation

The employer is not allowed to victimise a employee who refuses to do something that is against the BCEA. For example, if a employee says she cannot work overtime because her baby is sick at home, the employer cannot dismiss her, because the BCEA says that an employer cannot make a employee work overtime without the employee's consent.


Collective agreements

Collective bargaining is employee and employer/s negotiating with each other about terms and conditions of employment, to reach a collective agreement. The collective agreement may have different conditions to those in the Basic Conditions of Employment Act (BCEA).

A collective agreement overrides any individual contract of employment.

Collective agreements can be of two kinds:

Workplace-based collective agreements

A group of employees working for the same employer (usually at one workplace) and the employer negotiate and make a collective agreement. The collective agreement covers terms and conditions of employment for that category of employees working for that employer.

The BCEA says what things employees and employers are free to make collective agreements about. For example, employees and their employer cannot collectively agree that child labour will be allowed. Certain core rights cannot be altered. These include normal working hours (45 hours) maternity leave, night work provisions etc.

A workplace-based agreement may have different conditions to those in the BCEA, as long as they are more favourable to the employee than the BCEA. The BCEA sets out the minimum conditions of employment. Any agreement must at least comply with all the provisions of the BCEA. If an agreement breaks any part of the BCEA, it is not enforceable and the BCEA conditions override the conditions in the agreement.

If the collective agreement does not cover certain terms and conditions of employment, then those terms and conditions in the BCEA apply to the employees.

Notice to terminate a collective agreement must be given in writing.

A collective agreement can be made mandatory and applicable for all employees in a bargaining unit (in other words, non-union members) if the registered trade union is a majority union and the agreement specifies those employees to be covered by such agreement.

Enforcement of a workplace-based collective agreement

If you are helping an employee with a problem which is covered by a collective agreement under the BCEA, then you refer the problem to the CCMA or Bargaining council if you have failed to solve the problem with the employer on your own. If there is disagreement over an interpretation of a collective agreement or how it is being applied, then this can also be referred to the CCMA or appropriate bargaining council for conciliation and final arbitration in terms of Section 24 of the Labour Relations Act.

Bargaining Council Agreements

A Bargaining Council Agreement is the outcome of centralised collective bargaining under the Labour Relations Act.

A Bargaining Council Agreement sets out terms and conditions of employment for a particular industry in a particular area. The Agreement covers things like minimum wages (the lowest wages that an employer can pay an employee) and conditions of work (notice, annual leave, sick leave, and so on), in a particular industry in a particular area.

The conditions in the collective agreement may be better for employees than those in the BCEA. OR employees may agree to conditions less favourable than the BCEA provided they do not affect certain core rights and the agreement is overly better for the employees concerned. (see section 49 of the BCEA).

How are Bargaining Council Agreements made?

Bargaining Councils are permanent structures. They are made up of representatives of employers on the one hand and of trade unions on the other. The Labour Relations Act sets out conditions for setting up Bargaining Councils. The two parties to a Bargaining Council negotiate together to make a Bargaining Council Agreement which is reported in the Government Gazette.

A bargaining council may ask the Minister of Labour in writing to extend a collective agreement to any non-parties to the agreement, who are within the ’scope’ of the council.

If there is no Bargaining Council in a sector, unions or employer organisations can apply to establish a Statutory Council under the Labour Relations Act. For a Statutory Council to be introduced, the unions in that sector must represent 30% or more of employees in the sector, and the employers' organisation must represent 30% or more of employers in the sector. Statutory Councils can negotiate education and training, benefit funds and dispute resolution in the sector. In Statutory Councils, employers are not forced to negotiate over wages and conditions of employment. A Statutory Council may become a Bargaining Council later. At present in South Africa (2011) only one statutory council has been created; this is in the Printing and Packaging Industry.

Enforcement of a Bargaining Council Agreement

It is an offence for employers or employees working in a particular industry and area not to obey the terms of the Bargaining Council Agreement. Any problems about any of the working conditions in the Agreement must be referred to the Bargaining Council for investigation. The Bargaining Council’s agents have powers of inspection similar to Labour Inspectors in terms of the BCEA. Such agents can provide compliance orders where employers are in breach of the council agreement.

See Problem 3: Employee is paid below the minimum wage.

Settling disputes under a Bargaining Council

The Bargaining Council also plays a role in settling disputes, such as unfair labour practices or unfair dismissals in a particular industry. Disputes must be referred to the relevant Bargaining Council for conciliation if a Bargaining Council exists in the Sector. The Council appointed conciliators act as conciliators  to try to help the two parties negotiate a solution. If the conciliation does not resolve the dispute, either of the parties may refer the matter for arbitration to the  Bargaining Council which has its own accredited arbitrators. The Bargaining Council dispute resolution procedure is similar to the CCMA dispute resolution procedure. A Bargaining Council or CCMA Arbitrator may make an award ordering the employer to pay unpaid annual leave for example, an amount owing,  or make an appropriate award.

See Solving disputes under the LRA.


Sectoral determinations

A sectoral determination controls the terms and conditions of employment for employees in that particular sector. It may set minimum wages in sectors, regulate payment in kind, regulate pension and medical aid schemes, prohibit or regulate piece work, set minimum standards for housing for employees who live on the employer's premises, and so on. Sectoral determinations will be set in sectors where there is no centralised collective bargaining, and which require detailed and specific regulations (e.g. the agricultural sector).

Sectoral determinations may have different conditions to those in the Basic Conditions of Employment Act (BCEA). The conditions in the sectoral determinations will override the conditions in the BCEA.

How are sectoral determinations made?

The Basic Conditions of Employment Act (BCEA) provides for the establishment of an Employment Conditions Commission which investigates conditions in a particular industry or sector. Meetings are held to discuss the establishment of a sectoral determination. Anyone who is interested in having a say in a particular industry can attend these meetings which are advertised in the government gazette.

When the Employment Conditions Commission has heard all the information, it makes recommendations to the Minister of Labour. Once the Minister approves the recommendations, they are published in the Government Gazette as a Wage Determination or sectoral determination.

Enforcement of a sectoral determination

It is the Department of Labour's job to make sure that all employers and employees obey the conditions of employment laid out in sectoral determinations and Wage Determinations. If you are helping an employee who is covered by a sectoral determination or Wage Determination, you refer the problem to the Department of Labour if you have tried and cannot solve the problem with the employer on your own.

See Problem 3: Employee is paid below the minimum wage.

Settling disputes under a sectoral determination

It is also the Department of Labour's job to help with the settling of disputes.


Summary of the sectoral determination for farmworkers

The employment conditions of farmworkers are regulated by Sectoral Determination 8 and the Labour Relations Act. This is a summary of the provisions contained in the Sectoral Determination.

See the website: www.labour.gov.za and click on the appropriate Sectoral Determination for more information

1. Notice period and termination of employment

Any party to an employment contract must give written notice, except when an illiterate employee gives it, as follows:

Notice must be explained verbally by or on behalf of the employer to a farmworker if he/she is not able to understand it.

If the farmworker lives in accommodation provided by the employer then the employer must give him/her one month’s notice to leave the accommodation or allow the employee to remain in the home until the contract of employment ends.

The farm employee is allowed to keep livestock on the premises for a period of one month or until the contract of employment could lawfully have been terminated. The farmworker who has standing crops on the land is allowed to tend to those crops, harvest and remove them within a reasonable time after they become ready for harvesting unless the employer pays the farm employee an agreed amount for the crops.

All money that is owing to the farmworker for example, wages, allowances, pro rata leave, paid time-off not taken, and so on must be paid to the employee if the employee leaves the farm.

2. Procedure for terminating employment

A farmworker’s contract of employment may not be terminated unless a valid and fair reason exists and a fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure, the employee can refer the case to the CCMA. This should be dome within thirty days of being dismissed from the farm.

If a farmworker cannot return to work because of a disability, the employer must investigate the nature of the disability and decide whether or not it is permanent or temporary. The employer must try to change or adapt the duties of the employee to accommodate the employee as far as possible. But, if it is not possible for the employer to change or adapt the duties of the farmworker then the employer can terminate his/her services for what is called “Incapacity.”

The Labour Relations Act sets out the procedures that must be followed when a person’s services are terminated.

3. Wage/remuneration/payment

All farmers have to pay their employees a minimum wage. Wage rates are adjusted every year.

The minimum rate for the period 28 February 2011 to 29 February 2012 is R7.51 per hour and R1 375.94 per month.

Farmers who can prove that they cannot afford the minimum wage can apply to the Department of Labour for a variation or exemption from this requirement. The Department will consider variations only where the farmer can give good financial reasons for this.

Additional payments (such as for overtime or work on Sundays or Public holidays) are calculated from the total remuneration.

4. Transport allowance

The Sectoral Determination does not regulate transport so it is open to negotiation between the parties.

5. Hours of work

(a) Normal hours (excluding overtime)

A farmworker cannot work more than:

(b) Extension of ordinary hours of work

Ordinary hours of work can be extended by written agreement but by no more than 5 hours per week for a period of up to four months. The ordinary hours of work should be reduced by the same number of hours during a quiet period in the same twelve month period.

Averaging of working hours during season time

Averaging means employees can collectively agree to work shorter or longer hours than the Sectoral Determination allows. Any agreement to work longer hours means employees must get the same number of extra hours off at a later time. Any agreement regarding longer or shorter working hours must be in writing and should be done with the support of a trade union where possible.

Farmworkers can agree to work up to 50 hours a week for their ordinary wages but this can only go on for four months. However, if the parties want to extend this arrangement, they can agree in writing to do this and they must then notify the Department of Labour of this agreement so that a ‘Variation Order’ is made by the Department of Labour. In return, normal working hours must be reduced by the same amount (in other words to 40 hours) during the quiet periods.

The employer must pay the farm employee the wage he/she would have received for his/her normal hours worked.

If hours have been extended and not reduced at a later stage, then the hours must be paid as overtime.

(c) Overtime

A farmworker may not work –

Overtime is paid at one and a half time the employee’s normal wage or an employee may agree to take paid time off on the basis of one and a half hours off for every overtime hour worked.

(d) Daily and weekly rest periods

A farmworker is entitled to a daily rest period of 12 consecutive hours (hours in a row) and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed;

The daily rest period can be reduced to 10 hours if the parties agree and if the employee lives on the premises and takes a meal interval that lasts for at least 3 hours.

The weekly rest period can by agreement be extended to 60 consecutive hours every two weeks or be reduced to 8 hours in any week if the rest period in the following week is also extended.

(e) Night work

Night work means work performed after 8 p.m. and before 4.a.m.
Night work can only happen if the farmworker has agreed to this in writing. The employee must be compensated for night work by an allowance of at least 10% of the ordinary daily wage.

6. Meal intervals

A farmworker is entitled to a one-hour break for a meal after five hours work of continuous work. The interval may be reduced to 30 minutes by agreement. When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If an employee has to work through his or her meal interval, then he/ she must be paid for this.

7. Work on Sundays

Farmworkers should be paid for work on Sundays as follows:

Hours worked Payment
One hour or less Double the wage for one hour
Longer than one hour, but less than 2 hours Double the wage for the time worked
Longer than two hours, but less than 5 hours The normal daily wage
Longer than 5 hours Either:

- double the wage for the hours worked, or

- double the daily wage whichever is greater

A farmworker who does not live on the farm who works on a Sunday must be regarded as having worked at least two hours on that day.

8. Public Holidays

Farmworker are entitled to all the public holidays in the Public Holidays Act but the parties can agree to other public holidays. Work on a public holiday is voluntary which means a farmworker may not be forced to work.

The official public holidays are:

New Years day
Human rights day
Good Friday
Family Day
Freedom Day
Employees Day
Youth Day
National Woman’s Day
Heritage Day
Day of Reconciliation
Christmas Day
Day of Goodwill

Where the government declares an official public holiday at any other time then this must be granted. The days can be exchanged for any other day by agreement.

If the employee works on a public holiday he/she must be paid double the normal daily wage.

9. Annual leave

Full time farmworkers are entitled to 3 weeks leave per year. If the parties agree they can take leave as follows: 1 day for every 17 days worked or one hour for every 17 hours worked.

The leave must be given not later than 6 months after completing 12 months of employment with the same employer. The leave may not be given at the same time as sick leave, nor at the same time as a period of notice to terminate work.

10. Sick leave

During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

During a sick leave cycle of 36 months, an employee is entitled to paid sick leave that is equal to the number of days the employee would normally work during a period of 6 weeks.

The employer does not have to pay an employee if the employee has been absent from work –

and does not produce a medical certificate stating that he/she was too sick or injured to work.

11. Maternity leave

A farmworker is entitled to up to 4 consecutive months maternity leave. The employer does not have to pay the employee for the period for which she is off work due to her pregnancy. However the parties may agree that the employee will receive part of her whole wage for the time that she is off and the mother is able to claim from the UIF for maternity leave benefits.

12. Family responsibility leave

Employees who have been employed for longer than 4 months and for at least 4 days a week are entitled to take 3 days paid family responsibility leave during each leave cycle in the following circumstances:

13. Deductions from the remuneration

An employer is not allowed to deduct any monies from the employee’s wages without his/her written permission.

There can be a deduction of no more than 10% for food and 10% for accommodation where the food and accommodation is provided free of charge by the employer and on a regular and consistent basis. There can be an agreed charge  for electricity, water or other services. In addition, the house must have a proper roof which is waterproof. It must have glass windows that can be opened, electricity, safe water on tap inside the house (or not further than 100 meters from the house) and a flush toilet or pit latrine inside or close to the house.

Farmers may not deduct money from wages for training, provision of tools or equipment or uniforms.
Farmers may only deduct money from wages if this is for payment to-

14. Other issues

Other issues that are not dealt with the Sectoral Determination include:

These can all be negotiated between the parties and included in the contract of employment

15. Prohibition of employment

No one under the age of 15 can be required or permitted to work.

16. Other conditions of employment

There is no provision which prevents other conditions of employment being included in a contract of employment but any new conditions may be less favourable than those set by the Sectoral Determination.

17. General administrative requirements

The Sectoral Determination states that farmers must comply with the following administrative processes:

(See www.labour.gov.za for more information)

Note:

Farmworkers are also covered by the Labour Relations Act, and have a right to belong to unions and to organise with other employees. Union organisers have to negotiate access onto the farms with the farmers. If the farmer refuses, the matter can be taken up with the Department of Labour or the Commission for Conciliation, Mediation and Arbitration. A union which has approximately 30% of employees in an organisation or a farm , as its members, is entitled to have access to the farm or the establishment to hold meetings and to run union business. If this is a problem, the matter can be referred to the CCMA. Also, a thirty percent representation of a farm entitles the tarde union to ‘stop order facilities’ on the farm.

Sample contract of employment for farmworkers

This is a sample contract of employment for a farmworker

Name of employer………
Address of employer …………………..

To

Name of employee ……………………….

1. Commencement of employment

Employment started/will start on ………………………… and continue until terminated in terms of this contract.

2. Place of work

3. Job description

- Job title
- Duties:

4. Hours of work

4.1 Normal working hours will be ……… hours per week, made up as follows:

Monday/Tuesday/Wednesday/ Thursday / Friday ………….. a.m. to ………………p.m.
Mal intervals will be from: ……………..to ……………….
Other breaks:………………………

Saturdays: ………………………….a.m. to ………………………p.m
Meal intervals will be from: ……………..to ……………………..
Other breaks

Sundays: …………………………….a.m. to ………………………p.m.
Meal intervals will be from ………………to ……………………..
Other breaks

4.2 Hours of work will be extended with by not more than 5 hours per week during ……………..and reduced by the same hours during ………………..

4.3 Overtime will be worked as agreed from time to time and will be paid at the rate of one and a half times of the total wage as set out in clause 5.2 of this contract.

5. Wage

5.1 The employees wage shall be paid in cash on the last working day of every week/month and shall be: R………….

5.2 The employee shall be entitled to the following allowances/other cash payments in kind:

5.2.1 Accommodation per week/month to the value of R…………..
5.2.2 Food per week/month to the value of R …………

5.3 The following deductions are agreed upon: R………….
…………………………….. R………….

5.4 The total value of the above remuneration shall be : R………………
(the total of clauses 5.1 to 5.2.2
change or delete clauses as needed)

5.5 The employer shall review the employee’s salary/wage on or before 1 March of every year.

6. Termination of employment

Either party can terminate this agreement with one weeks notice during the first six months of employment and with four weeks notice thereafter. Notice must be given in writing except when it is given by an illiterate employee. In the case where the employee is illiterate notice must be explained orally by or on behalf of the employer.

On giving notice the employer is to provide the employer who resides in accommodation that belongs to the farmer, accommodation for a period of a month. The employer is also obliged to allow the employee who has standing crops on the land a reasonable time to harvest the crop or the farmer may pay the employee an agreed amount for that crop.

7. Sunday work

Any work on Sunday will be by agreement between parties and will be paid according to the Sectoral Determination.

8. Public Holidays

Any work on holidays will be by agreement and will be paid according to the Sectoral Determination.

9. Annual leave

The employee is entitled to three weeks paid leave after every 12 months of continuous service. Such leave is to be taken at times convenient to the employer and the employer may require the employee to take his/her leave at such times as coincide with that of the employer.

10. Sick leave

10.1 During every sick leave cycle of 36 months the employer will be entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

10.2 During the first 6 months of employment the employee will be entitled to one day’s paid sick leave for every 26 days worked.
10.3 The employee is to notify the employer as soon as possible in case of his/her absence from work through illness.
10.4 A medical certificate is required if absent for more than 2 consecutive days or if absent on more than two occasions during an 8 week period.

11. Maternity leave
(Tick the applicable clauses in the space provided)

The employee will be entitled to ………………… months maternity leave without pay …………..
OR
The employee will be entitled to …………………. Months maternity leave on ……………….pay

12. Family responsibility leave

The employee will be entitled to three days family responsibility leave during each leave cycle if he/she works on at least 4 days a week and provided the employee has been employed for longer than Four months.

13. Accommodation
(Tick the appropriate box)

13.1 The employee will be provided with accommodation for as long as the employee is in the service of the employer.
13.2 The accommodation may only be occupied by the employee and his/her immediate family, unless by prior arrangement with the employer
13.3 Prior permission should be obtained for visitors who wish to stay the night. However, where members of the employees’ direct family are visiting, such permission will not be necessary.

14. Clothing
(delete whichever is not applicable)

………………sets of uniforms/protective clothing will be supplied to the employee free of charge by the employer and will remain the property of the employer.

……………..sets of boots will be supplied to the employee free of charge by the employer and will remain the property of the employer.

15. Other conditions of employment or benefits

…………………………………………………..

16. General
Any changes to the written contract will only be valid if agreed by both parties.

…………………………………………………….
Employer

Acknowledgement of receipt by employee

……………………………………………

Date:…………………………..


Summary of the Sectoral Determination for domestic workers

Working conditions of domestic workers are regulated by a sectoral determination and the Labour Relations Act.

See Sectoral Determinations.

1. Notice period and termination of employment

Any party to an employment contract must give written notice, except when an illiterate employee gives it, as follows:

Notice must be explained verbally by or on behalf of the employer to a domestic employee if he/she is not able to understand it.

If the domestic worker lives in accommodation provided by the employer then the employer must give him/her one month’s notice to leave the accommodation or until the contract of employment could lawfully have been terminated.

All money that is owing to the domestic worker for example, wages, allowances, pro rata leave and paid time-off not taken, must be paid.

An employer who has to dismiss an employee due to a change in his/her economic, technological, or structural set-up, called operational requirements in the determination, is responsible for severance pay to the employee.

2. Procedure for terminating employment

A domestic worker’s contract of employment may not be terminated unless a valid and fair reason exists and a fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure, the employee can refer the case to the CCMA.

If a domestic worker cannot return to work because of a disability, the employer must investigate the nature of the disability and decide whether or not it is permanent or temporary. The employer must try to change or adapt the duties of the employee to accommodate the employee as far as possible. But, if it is not possible for the employer to change or adapt the duties of the domestic employee then the employer can terminate his/her services.

The Labour Relations Act sets out the procedures that must be followed when a person’s services are terminated.

3. Wage/remuneration/payment

All employers of domestic workers throughout South Africa have to pay their employees a minimum wage. There are two rates for the minimum wage which are based on:

Wages according to areas

Wages are prescribed for two areas, Area A and Area B. These areas are based on municipal boundaries.

Area A:

Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality.

Area B–applies to the rest of South Africa

Wages will be payable according to the number of hours worked per week.

If a domestic employee works for 27 ordinary or less hours per week, he/she will be entitled to slightly higher wage. This is to compensate the employee, as he/she does not have a full-time job.

How are wages calculated?

Area A

These are the minimum rates for the period 1 December 2010 – 1 December 2011: (wage rates are adjusted every December)

If an employee works 27 ordinary hours or less per week his/her hourly wage is R9.12 per hour,  R246.30 per week, and R1067.15 per month.

If an employee works more than 27 ordinary hours per week, his/her hourly wage is R7.72 per hour, R347.79 per week, and  R1506.35 per month.

Area B

If an employee works 27 ordinary hours or less per week his/her hourly wage is R7.60 per hour,  R205.52 per week, and  R890.52 per month

If an employee works more than 27 ordinary hours per week, his/her hourly wage is R6.44 per hour, 290.00 per week, and  R1256.14 per month.

Guaranteed minimum rate

Some domestic employees might work less than 4 hours per day. If this is the case, he/she should be paid for 4 hours worked.

Annual increase

Wages will go up by at least 8% in November of every year. Wage increases are published by the Department of Labour.

Calculating the minimum wages

Employers who cannot afford to pay the minimum wage can choose to reduce the number of hours to be worked instead of retrenching the employee. However, it is against the law to pay less than the minimum hourly rate. If an employer pays more than the prescribed hourly rate, they cannot reduce the rate because it will be an unfair labour practice.

Example of calculating a domestic worker’s wage

Sarah is a domestic worker who works 6 hours a day from Monday to Friday for an employer who lives in Soweto. What is the minimum rate that Sarah can be paid according to the Sectoral Determination for domestic workers?

6 hours per day x 5 days = 30 hours worked per week
She must be paid at the rate prescribed for AREA A = R7.72 per hour

30 hours per week x R7.72 (rate for Area A for an employee working more than 27 hours per week)
= R231.60 for 30 hours per week

Additional payments (such as for overtime or work on Sundays or Public holidays) are calculated from the total remuneration..

4. Transport allowance

The Sectoral Determination does not regulate transport so it is open to negotiation between the parties.

5. Hours of work

(a) Normal hours (excluding overtime)

A domestic worker cannot work more than:

(b) Overtime

Overtime is voluntary and a domestic worker may not work –

Overtime is paid at one and a half times the employee’s normal wage or an employee may agree to take paid time off.

(c) Daily and weekly rest periods

A domestic worker is entitled to a daily rest period of 12 consecutive hours (hours in a row) and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed;

The daily rest period can be reduced to 10 hours if the parties agree and if the employee lives on the premises and takes a meal interval that lasts for at least 3 hours.

The weekly rest period can by agreement be extended to 60 consecutive hours every two weeks or be reduced to 8 hours in any week if the rest period in the following week is also extended.

(d) Standby

Standby means any period between 8 p.m. and 6 a.m. when a domestic worker is needed to be at the workplace and is allowed to rest or sleep but must be available to work if necessary.

This may only be done if the parties have agreed in writing and not more than 5 times per month. An allowance of at least R20 per shift must be paid for standby.

An employer must pay a domestic worker for any time worked in excess of three hours during any period of stand-by. The employee must be paid at the normal overtime rate or given paid time-off.

(e) Night work

6. Meal intervals

A domestic worker is entitled to a one-hour break for a meal after five hours continuous work. The interval may be reduced to 30 minutes by agreement. When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If an employee has to work through his or her meal interval, then they must be paid for this.

7. Work on Sundays

Work on Sundays is voluntary and a domestic employee cannot be forced to work on a Sunday.

A domestic worker who works on a Sunday must be paid double the daily wage.

If the employee ordinarily works on a Sunday he/she should be paid one and a half times the wage for every hour worked. If the parties agree, the employee can be paid by giving her / him time off of one and a half hours off for each overtime hour worked.

8. Public Holidays

Domestic workers are entitled to all the public holidays in the Public Holidays Act but the parties can agree to other public holidays. Work on a public holiday is voluntary which means a domestic employee may not be forced to work.

The official public holidays are:

New Years day
Human rights day
Good Friday
Family Day
Freedom Day
Employees Day
Youth Day
National Woman’s Day
Heritage Day
Day of Reconciliation
Christmas Day
Day of Goodwill

Where the government declares an official public holiday at any other time then this must be granted. The days can be exchanged for any other day by agreement.

If the employee works on a public holiday he/she must be paid double the normal days wage.

9. Annual leave

Full time domestic workers are entitled to 3 weeks leave per year. If the parties agree they can take leave as follows: 1 day for every 17 days worked or one hour for every 17 hours worked.

The leave must be given not later than 6 months after completing 12 months of employment with the same employer. The leave may not be given at the same time as sick leave, nor at the same time as a period of notice to terminate work.

10. Sick leave

During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

During a sick leave cycle of 36 months, an employee is entitled to paid sick leave that is equal to the number of days the employee would normally work during a period of 6 weeks.

The employer does not have to pay an employee if the employee has been absent from work –

and does not produce a medical certificate stating that he/she was too sick or injured to work. The certificate can be from a doctor, a traditional healer or a qualified nurse.

11. Maternity leave

A domestic worker is entitled to up to 4 consecutive months maternity leave. The employer does not have to pay the employee for the period for which she is off work due to her pregnancy. However the parties may agree that the employee will receive part of her whole wage for the time that she is off. The mother can also claim maternity benefits from UIF for the full four months.

12. Family responsibility leave

Domestic workers who have been employed for longer than 4 months and for at least 4 days a week are entitled to take 3 days paid family responsibility leave during each leave cycle in the following circumstances:

13. Deduction from the remuneration

An employer is not allowed to deduct any monies from the employee’s wages without his/her written permission.

There can be a deduction of no more than 10% for accommodation if the accommodation:

14. Other issues

Other issues that are not dealt with the Sectoral Determination include:

These can all be negotiated between the parties and included in the contract of employment

15. Prohibition of employment

No one under the age of 15 can be required or permitted to work.

16. Other conditions of employment

There is no provision which prevents other conditions of employment being included in a contract of employment but any new conditions may be less favourable than those set by the Sectoral Determination.

17. General administrative requirements

The Sectoral Determination states that employers must comply with the following administrative processes:

(See www.labour.gov.za and click on Sectoral Determination for domestic employees for more information.)

Sample contract of employment for domestic workers

This is a sample contract of employment for a domestic worker

Name of employer………
Address of employer …………………..

To

Name of employee ……………………….

1. Commencement of employment

Employment started/will start on ………………………… and continue until terminated in terms of this contract.

2. Place of work ………………………………….

3. Job description

- Job title
- Duties:

4. Hours of work

4.1 Normal working hours will be ……… hours per week, made up as follows:

Monday/Tuesday/Wednesday/ Thursday / Friday ………….. a.m. to ………………p.m.
Mal intervals will be from: ……………..to ……………….
Other breaks:………………………

Saturdays: ………………………….a.m. to ………………………p.m
Meal intervals will be from: ……………..to ……………………..
Other breaks

Sundays: …………………………….a.m. to ………………………p.m.
Meal intervals will be from ………………to ……………………..
Other breaks

4.2 Hours of work will be extended with by not more than 5 hours per week during ……………..and reduced by the same hours during ………………..

4.3 Overtime will be worked as agreed from time to time and will be paid at the rate of one and a half times of the total wage as set out in clause 5.2 of this contract.

4.4 Standby will only be done if agreed from time to time whereby an allowance of at least R20 will be paid per standby shift.

5. Wage

5.1 The employees wage shall be paid in cash on the last working day of every week/month and shall be: R………….

5.2 The employee shall be entitled to the following allowances/other cash payments in kind:

5.2.1 Accommodation per week/month to the value of R…………..
5.2.2 a weekly/monthly transport allowance to the value of R …………

5.3 The following deductions are agreed upon: R………….
…………………………….. R………….

5.4 The total value of the above remuneration shall be : R………………
(the total of clauses 5.1 to 5.2.2
change or delete clauses as needed)

5.5 The employer shall review the employee’s salary/wage on or before 1 November of every year.

6. Termination of employment

Either party can terminate this agreement with one weeks notice during the first six months of employment and with four weeks notice thereafter. Notice must be given in writing except when it is given by an illiterate employee. In the case where the employee is illiterate notice must be explained orally by or on behalf of the employer.

On giving notice the employer is to provide the employer who resides in accommodation that belongs to the employer accommodation for a period of a month.

7. Sunday work

Any work on Sunday will be by agreement between parties and will be paid according to the Sectoral Determination.

8. Public Holidays

Any work on holidays will be by agreement and will be paid according to the Sectoral Determination.

9. Annual leave

The employee is entitled to three weeks paid leave after every 12 months of continuous service. Such leave is to be taken at times convenient to the employer and the employer may require the employee to take his/her leave at such times as coincide with that of the employer.

10. Sick leave

10.1 During every sick leave cycle of 36 months the employer will be entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

10.2 During the first 6 months of employment the employee will be entitled to one day’s paid sick leave for every 26 days worked.

10.3 The employee is to notify the employer as soon as possible in case of his/her absence from work through illness.

10.4 A medical certificate is required if absent for more than 2 consecutive days or if absent on more than two occasions during an 8 week period.

11. Maternity leave
(Tick the applicable clauses in the space provided)

The employee will be entitled to ………………… months maternity leave without pay …………..
OR
The employee will be entitled to …………………. Months maternity leave on ……………….pay

12. Family responsibility leave

The employee will be entitled to three days family responsibility leave during each leave cycle if he/she works on at least 4 days a week.

13. Accommodation
(Tick the appropriate box)

13.1 The employee will be provided with accommodation for as long as the employee is in the service of the employer, which shall form part of his/her remuneration package.

13.2 The accommodation may only be occupied by the employee and his/her immediate family, unless by prior arrangement with the employer

13.3 Prior permission should be obtained for visitors who wish to stay the night. However, where members of the employees direct family are visiting, such permission will not be necessary.

14. Clothing
(delete is not applicable)

………………sets of uniforms/protective clothing will be supplied to the employee free of charge by the employer and will remain the property of the employer.

15. Other conditions of employment or benefits

…………………………………………………..

16. General

Any changes to the written contract will only be valid if agreed by both parties.

…………………………………………………….
Employer

Acknowledgement of receipt by employee

……………………………………………

Date:…………………………..


Deregulation

Deregulation means removing laws and regulations so that there is less restriction and 'red-tape' for people who want to operate in an area. For example, where an industry applies for exemption from a Bargaining Council Agreement or Wage Determination, or where areas are designated as “industrial hives’ where wage regulating measures don’t apply. Deregulation can have a positive effect, for example the lifting of regulations that control the granting of hawkers' licenses so that more people can work as hawkers or street traders because the laws about getting a hawker's license aren't so strict. Deregulation is controlled by the Department of Labour whose role is to ensure that any form of deregulation will not have a negative impact on people in the workplace.


Other laws that apply to terms and conditions in the workplace

Employment Equity Act (No 55 of 1998)

The Employment Equity Act (EEA) aims to create an environment of equality and non-discrimination in the workplace. It states grounds for non-discrimination in the workplace including:

The EEA is important because it includes three grounds for non-discrimination that are not included in the Constitution or the Equality Act: family responsibility, HIV status and political opinion. A case can be referred to the Labour Court if an employee believes that an employer is discriminating against him or her on any of these grounds in order to:

The EEA also sets out regulations on affirmative action in the workplace to create equal opportunities for all employees and for people applying for jobs. It says that an employer who employs over 50 people or has a turnover of over a certain threshold , must take steps to include and advance, previously disadvantaged groups (black people, women and the disabled) in their workforce. This involves setting up an Employment Equity Committee which works to improve equal opportunity in the company, promote equal opportunity and remove unfair discrimination,

So, when a company makes new appointments or promotes staff, it must give ‘preferential treatment’ to properly qualified people who are from one of these previously disadvantaged groups, (female, black of disability) . In other words, formal qualifications or relevant experience are not the

The EEA covers everyone except the South African National Defence Force (SANDF), the National Intelligence Agency (NIA) and Secret Services.

The Occupational Health and Safety Act (No 85 of 1993) (OHSA)

The OHSA gives employees specific rights in health and safety at work. It gives health and safety guidelines for the workplace to employers and gives inspectors wide power to ensure that these are being implemented. See the following website for an easy guide to OHSA and the Regulations: www.labour.gov.za/docs/legislation/ohsa/ohsbooklet.html

Who does the OHSA cover?

The Act excludes employees in mines and on ships, where other laws apply. The OHSA covers all other employees, including farmworkers, domestic workers and state employees.

The employee's duties

Employees must take reasonable precautions over their own health and safety at work. They must follow precautions and rules about safety and health. They must report any unsafe circumstances or accident as soon as possible to the safety representative. Anyone who acts in a reckless way or damages any safety measures can be charged and a claim for damages can be brought against them.

The employer's duties

The employer must make sure that the workplace is safe and healthy, and must not allow any employee to do work which is potentially dangerous. The employee must know what the dangers of the work are. The general duties of the employer are to:

The Chief Inspector can ask any employer for a report of the safety precautions.

An employer cannot take action against any workers who do the following:

Reporting accidents or incidents

The employer must keep a report of all accidents and safety or health incidents in the workplace. The employer must report certain accidents or incidents to the safety representative and to the Department of Labour.

Safety Representatives and safety committees

The employer must appoint one safety representative for every 20 employees. There must be at least one representative for every 50 employees. The employer must explain to the employees' organisation what responsibilities the safety representatives will have and how the representatives will be selected.

In every workplace where there are two or more safety representatives there must also be a safety committee. This committee must meet at least every three months. The committee must deal with all safety and health issues that affect employees. The safety committees have certain functions and powers. You can find out more about these in the Act or by contacting the Department of Labour.

Enforcement of the OHSA

OHSA falls under the administration of the Department of Labour. Inspectors from the Department have wide powers to search the workplace, question people, ask for explanations from an employer, and so on.

An inspector can fine a person for breaking the Act. If that person wants to appeal against the inspector's decision, they can appeal to the Chief Inspector. They can appeal against the Chief Inspector's decision in the Labour Court.

If an employee is hurt at work as a result of the employer not following a safety regulation, then that employer can be fined up to R100 000 and /or two years in prison.

Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

The 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace defines sexual harassment and refines procedures on managing such complaints.

One of the most difficult aspects of sexual harassment at work is the balance of rights. In the first place the right to personal dignity of the victim has been infringed. Everyone has a right to a safe working environment which includes not being harassed. On the other hand, the alleged perpetrator also deserves fair treatment. ‘Fair treatment’ means that he or she should only be disciplined after the allegations have been investigated and the evidence supports the allegations of harassment.

What is sexual harassment?

Sexual harassment is defined in the Code of 2005 as:

‘unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace’ and takes into account the following factors:

  1. Was the conduct on prohibited grounds (sex, gender or sexual orientation)?
  2. Was it unwelcome? Ways to show behaviour is unwelcome include verbal and non-verbal actions like walking away or not responding to the harassor.
  3. What was the nature and extent of the sexual conduct?  The conduct can be physical, verbal or non-verbal.

 The conduct can also be victimization where a person gets victimized for failing to respond to sexual advances and the intention is to humiliate him or her; or sexual favouritism – ‘rewards’ for sex.

  1. What was theimpact on the employee?  This is a subjective test and involves looking at the effect of the action on the victim’s dignity. It takes into account the circumstances of employee and the positions of power between the victim and alleged harassor

Sexual harassment as a form of unfair discrimination

The Code says that sexual harassment is a form of unfair discrimination and that harassment on the grounds of sex and/or gender and/or sexual orientation is prohibited.

Test for sexual harassment

The Code defines which factors must be taken into account when deciding whether an action constitutes unwelcome conduct. It gives guidelines as to what constitutes sexual harassment and explains what is understood by ‘nature and extent’ of the conduct (see definition of ‘unwelcome conduct’).

When it comes to the impact of the conduct, the code says the conduct must be an impairment of the employee’s dignity and the relevant considerations here are the circumstances of the employee and the positions that the employee and the alleged harassor hold in the organisation.  When assessing the impact of the conduct, the test is a subjective one where the focus is not only on the actions that constitute sexual harassment, but more substantially on the effects and the circumstances surrounding these actions. So, it requires the employer to look at the psychological impact of the sexual conduct on an employee and not only at how an objective person might judge the action.

Digital harassment is also conduct that can constitute sexual harassment.

Sexual harassment policies and procedures

The Code requires the employer to adopt a sexual harassment policy and says what should be included in this policy, for example:

The policy should also outline the steps and the procedures to be followed by a complainant who wants to lodge a sexual harassment complaint or grievance. The Code sets out the procedures that should be followed when a complaint of sexual harassment is made.

Procedures for dealing with complaints of sexual harassment

The Code says the following  procedures should be included in the policy:

  1. Reporting sexual harassment – Conduct involving sexual harassment must immediately be reported to the employer. ‘Immediately’ means ‘as soon as is reasonably possible in the circumstances’ and without delay, taking into account the nature of sexual harassment (as a sensitive issue), the fear of a negative response, and the positions of the complainant and the alleged harassor in the workplace.
  2. The employer must do the following:

Implementing formal  procedures without the consent of the complainant

The Code says that a complainant can choose to follow a formal procedure or an informal procedure. If the complainant chooses NOT to follow a formal procedure, the employer should still assess the risk to other people in the workplace. The employer must take into account all relevant factors, including:

If the employer believes after a proper investigation that there is a serious risk of harm to the people in the workplace, he or she can follow a formal procedure, regardless of what the complainant wants. The complainant must obviously be informed of this.

When is an employer liable in a case of sexual harassment?

Employment Equity Act (EEA)

If an employer is liable for sexual harassment this could have severe financial implications.

Section 60 of the EEA says that if an employee, while at work, engages in any conduct that goes against the Act (for example, sexual harassment), then the conduct must immediately be brought to the attention of the employer.

The employer must consult all relevant parties and take necessary steps to stop the conduct. If the employer fails to take the necessary steps and it is proved that the employee is guilty of sexual harassment, then the employer will be liable for the conduct.  

However, if the employer can prove that he or she did everything that was reasonably possible to create an environment free of sexual harassment, for example, by adopting a sexual harassment policy and communicating this to the workplace, then these actions could shift the liability of the employer.

Common law

An employer can be liable in terms of the common law if he or she does not provide a safe working environment. In the Media 24 Ltd and another v Grobler case, the court held that the employer has a legal duty to take reasonable steps to prevent sexual harassment of its employees in the workplace and is obliged to compensate the victim for harm caused because of this.

The court also said that if a person gets Post-Traumatic Stress Syndrome arising out of or in the course of employment, the victim would have to claim compensation under the COIDA and would not be able to proceed with a civil claim against the employer.

What is the role of a trade union in dealing with sexual harassment in the workplace?

Management has certain obligations in terms of the Code which the trade union needs to see are enforced. These include:  

The Code does not say how a policy should be adopted but certainly it should be done in consultation with union representatives and employees.

The failure to adopt a workplace policy could impact on the employer’s liability in the future.

An employer must communicate the policy effectively to employees. The employer must therefore take active steps to provide education and training on sexual harassment and people’s rights and obligations in the workplace.

When management is informed of a sexual harassment complaint it must:

Create an environment that is free of sexual harassment

Management must aim to create an environment that is free of sexual harassment by: having a sexual harassment policy, communicating the policy to employees and dealing effectively and in terms of the policy with cases brought to its attention. This obligation also means implementing formal procedures where the risk is serious to other employees (even where the complainant has no wish to proceed with action).

The Merchant Shipping Act

The Merchant Shipping Act 57 of 1951 says that the Labour Relations Act and the Wage Act apply to all employees at sea. It says that if there is conflict between the provisions of the MSA and the provisions of a Bargaining Council Agreement or Wage Determination, the provisions of the Agreement or Determination will apply.

The MSA covers employees who are at sea within South Africa’s territorial waters. If employees at sea are outside the territorial waters of South Africa, then an Agreement or Determination will apply to the following employees:


Disputes and ways of settling disputes

What is a dispute?

A dispute is any serious disagreement between two parties. For example, there could be a dispute over a problem of discipline in the workplace, over complaints (also called 'grievances') which employees have, or over dismissals. There can also be disputes over wages and other working conditions.

So, there are different kinds of disputes. You can have a dispute about making new rights, for example employees wanting to get paid higher wages or the employer bringing in a new pension or provident fund scheme which  employees must belong to. These disputes are also called disputes of interest. These disputes are often handled by a union and are the subject of negotiation and possible industrial action (strike action) where agreement cannot be reached. The Labour Relations Act describes structures and processes which can be used to resolve disputes of interest. The Act also governs the procedures for taking industrial action.

There are also disputes over rights which already exist in a contract, a law, an agreement or in custom and practice. These kinds of disputes are called disputes of right. They usually involve an unfair dismissal (for example retrenching employees without consulting with the employees) or unfair discrimination or an unfair labour practice (such as ‘removal of benefits’). The Labour Relations Act sets out how disputes over rights in the workplace must be handled and the Employment Equity Act sets out how discrimination will be dealt with in the workplace.

See Labour Relations Act.
See Employment Equity Act.

A dispute of right can also happen when an employer  doesn't obey a term or condition of a wage regulating measure, for example, the Basic Conditions of Employment Act, a Bargaining Council Agreement (or other collective agreement), Wage Determination, sectoral determination, or a Ministerial exemption. An example of a dispute of right is where an employer doesn't pay an employee the correct leave pay or where an employee is dismissed without the employer following a fair procedure. Enforcement and disputes about terms and conditions of employment that fall under these laws should be dealt with by the relevant Bargaining Council or the Department of Labour.

See Laws about terms and conditions of employment.

Dispute of interest

The Labour Relations Act (LRA) sets out structures and processes which can be used to resolve disputes of interest. The outcome of disputes of interest will depend on the relative strength of employees and employers. Each party may use different strategies to win what they want.

Employees can take industrial action over disputes of interest, like strikes, work stoppages and go-slows once they have complied with prescribed dispute procedures. Employees cannot strike over disputes of rights under the LRA (e.g. unfair labour practices and unfair dismissals).Disputes of right are referred to arbitration at the CCMA or the Bargaining Council.

The LRA governs the procedures that must be followed before industrial action can be taken by employees (strikes) or by the employer (lock outs).

Disputes of right

Where there is no bargaining council:

If it is a dispute about enforcing a right under the Basic Conditions of Employment Act (BCEA), , a Sectoral Determination or a Wage Determination or the Occupational Health and Safety Act, then a complaint can be sent to the Department of Labour. The complaint can include a request for a ‘Compliance order’ which is issued by an inspector of the Department. See Enforcement of the BCEA.
See Enforcement of a workplace-based collective agreement.
See Enforcement of a sectoral determination.
See Enforcement of the OHSA.

If it is a matter of enforcing a right or a dispute of rights under the Labour Relations Act (LRA) (for example, an alleged unfair dismissal) where no bargaining council exists in that sector, then the matter should be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. If the dispute concerns a dismissal, it must be referred within 30 days of the date of dismissal. If it concerns an Unfair Labour Practice, then the dispute must be referred within 90 days of the alleged unfair practice occurring.

See Solving disputes under the LRA.

If conciliation fails then refer the dispute to arbitration within 30 days of receiving the certificate of failed conciliation from the CCMA. The CCMA will hear disputes over a BCEA issue if it is related to a matter which is being arbitrated by the CCMA (for example, a claim of unfair dismissal is before the CCMA together with a claim for unpaid leave pay).

Where there is a bargaining council:

If it is a dispute of rights under a Bargaining Council Agreement then the problem should be referred to the Bargaining Council for enforcement or conciliation. If conciliation fails then refer the dispute to arbitration within 30 days of receiving the certificate of failed conciliation from the Bargaining Council.


The Labour Relations Act (LRA)

The Labour Relations Act (No 66 of 1995) governs how employers and employees should deal with each other and what rights trade unions and employer organisations have in the workplace. It is not about terms and conditions of employment.
The LRA  deals with rights of individuals regarding fairness, bargaining and dispute resolution and rights and obligations of trade unions.

Who is covered by the LRA?

Except for members of the South African National Defence Force, National Intelligence Agency and Secret Service, all employees are covered by the LRA, including farmworkers, domestic workers and public sector employees (such as teachers, nurses, police and so on who work for the state).

An independent contractor is not defined as an ‘employee’ and is therefore excluded from the LRA and BCEA provisions.

What is the LRA about?

The LRA covers things like:

Unfair labour practices

What is an unfair labour practice?

The Labour Relations Act (LRA) prohibits unfair labour practices. An unfair labour practice is any unfair act or omission at the workplace, involving:

References to unfair discrimination against an employee in the LRA have been transferred to the Employment Equity Act (No 55 of 1998) (EEA) so ‘unfair discrimination’ is no longer defined as an unfair labour practice in the LRA. The EEA lists the grounds for non-discrimination in the workplace and describes the steps that a person can take if they believe they have been discriminated against on any of the listed grounds.

See Employment Equity Act.

What steps can be taken if an unfair labour practice is committed?

Disputes over alleged unfair labour practices must be referred within 90 days of the alleged unfair labour practice being committed (or of the employee becoming aware of the Unfair Labour Practice). The referral must be to the CCMA or Bargaining Council.

See Solving disputes under the LRA.


Dismissals

What is a dismissal?

Dismissal means that:

  1. An employer terminates a contract of employment with or without notice

Where notice is to be paid, the notice pay must be what is prescribed as notice in the contract of employment, for example, 1 week's pay instead of 1 week's notice. The payment must include the value of payment in kind if this applies to a particular sector. Employees must therefore get wages for the hours worked, plus any leave pay plus payment in lieu of notice. If the employee has been summarily dismissed (with fair reasons and following a fair hearing), this means the employee has to leave immediately and the employer does not have to make any payment in lieu of notice.

  1. 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 before or because an expectation exists that the employment will be ongoing.
  2. A woman who is not taken back into her job after her maternity leave
  3. An employer dismisses a number of employees for some reason (for example for being on strike) and offers to re-employ one or more but not all.
  4. An employee who was forced to walk out or resign because the employer made the working environment impossible to tolerate.
  5. The employee leaves his / 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 which he / she enjoyed before.
  6. Employees have been retrenched. The employer must pay the employee severance pay of at least 1 week's remuneration for every full year that 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 LRA. An employee could claim unfair dismissal through the CCMA or relevant Bargaining Council.

Automatically unfair dismissals

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

When is a dismissal fair?

The LRA has a Code of Good Practice for Dismissals that employers must follow. The 'fairness' of dismissal is decided in two ways – substantive fairness and procedural fairness.

Is a dismissal unfair?

See Chart on page 201

Substantive fairness

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

A 'fair' reason can be one of these:

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 or her side of the story before the employer decides on dismissal.

If an employee feels a dismissal was unfair, either substantively or procedurally, then this can be referred to the CCMA for conciliation and thereafter arbitration, if this is necessary. Other aspects of a fair procedure are explained below under the different reasons for dismissal.

Dismissal for Misconduct

Fair reasons

Employers are encouraged to adopt clear rules of conduct that are known to all workers. Some rules may be so well established or obvious that everyone can be expected to know them, for example that violence at work is not acceptable.

Dismissals for misconduct will only be fair if:

For minor mistakes the employer must use informal advice. Corrective or progressive discipline must be used for misconduct. The aim of corrective discipline is to correct the employee and help him or her overcome the problem. Progressive discipline can get stronger every time the employee repeats the misconduct.

Employees should not be dismissed 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.

Employees can be dismissed for misconduct if they go on strike without following the procedures. The employer must contact a trade union official and tell the official of the planned dismissals, and try to give employees an ultimatum with enough time to consider the ultimatum.

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

Fair procedures

Employers must keep records for each employee, which say what offences a employee committed, what disciplinary action was taken, and why the action was taken.

If there is repeated misconduct, the employer must give the employee warnings. A final warning for repeated misconduct or serious misconduct must be given in writing.

There must be a fair hearing:

Sometimes, if the employer there might be some leniency as to how the employer  meets all these requirements.

Dismissal for incapacity

Fair reasons

A dismissal for incapacity can be for:

When deciding whether a dismissal for incapacity was fair or not, the following must be considered:

Fair procedure

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

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

How badly ill or disabled the employee is (degree of incapacity) and for how long he or she is likely to remain ill or disabled (duration of incapacity), as well as the reason for the incapacity will be considered when deciding whether the dismissal is fair or not. More effort is expected of the employer if the employee was injured or got sick because of their work.

See Problem 18: Employee is injured on duty and loses the job.

Retrenchment or redundancy dismissal

Fair reasons

An employer is allowed to retrench employees for 'operational requirements' based on the employer's 'economic, technological, structural or similar needs'. For example, maybe the employer says the business is losing money (economic reason), the employer is getting a machine to do work that employees did by hand before, or the employer's new machines need different skills to operate them than the existing employees' skills (technological reasons), or the employer is restructuring the business by combining two departments so she doesn't need two Heads of Departments anymore (structural reason).

Fair procedure

When an employer considers retrenchment, he or she must consult:

The employer must issue a written notice inviting the other party to consult with it and make all the relevant information available in writing at the consultations, including:

The employees the employer is consulting with must be allowed to have their say and make suggestions 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 an agreement on the different issues, such as:

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.

Section 189A of the Labour Relations Act, has special provisions for retrenchments in companies that employ more than fifty employees. The provisions can be used by parties, if both agree to this, to help them reach an agreement. The provisions allow for an outside facilitator to help facilitate the process and the right to strike over retrenchments as a final resort.

See Problem 5: Retrenchment.

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

If an employee thinks that 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 a 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 she or he was never dismissed. Re-employment means the employee gets the job back, but starts like a new employee.

The employee is likely to get compensation if:

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

The Labour Relations Act sets out the procedures to be followed to resolve disputes over unfair labour practices and unfair dismissals. The steps are summarised below. This section looks in detail at conciliation, arbitration and adjudication.

See Problem 4: Dismissed employee wants the job back - How to apply for reinstatement or compensation.
See Problem 6: Employee is dismissed for being drunk on duty (with no previous record of drunkenness).


Solving disputes under the LRA

Chart: Steps to resolve a labour dispute under the LRA

[see page 207]


Conciliation by the CCMA or Bargaining Council

What is conciliation?

Conciliation is a process to bring the two sides in a dispute together after they have reached a deadlock. 'Deadlock' means that after trying to negotiate, they still can't solve the problem. In conciliation, an independent and neutral third party is used to mediate between the two sides. Under the Labour Relations Act, the mediator is a commissioner from the CCMA or Bargaining Council.

How to refer the dispute to the right body

Find out whether there is a Bargaining Council covering the sector that the employee works in. If there is a Bargaining Council, phone that Council and find out the steps you should take to refer the matter for conciliation.

If there is no Bargaining Council, the dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. Do the following:

If the employee does not want conciliation and arbitration (known as ‘Con-Arb) to take place on the same day with the same commissioner, he or she must note this in the appropriate space on the dispute Form 7.11.

See LRA Form 7.11 (PDF)

Apply for condonation if the referral is late

If more than 30 days have passed since the dismissal (or 90 days if it is an unfair labour practice) took place, the employee will have to apply for condonation, which is like an extension of the deadline and an application for late submission. If a Bargaining Council will deal with the matter, he or she will need to make an application for condonation and submit this application together with the LRA 7.11 form

If the CCMA will deal with the matter, the employee can apply for condonation in form LRA 7.11, or the CCMA will ask him or her to fill in condonation forms if they didn't do it on form LRA 7.11. If the application is late, the CCMA will not process the referral if the employee has not made an application for condonation together with the referral of LRA 7.11 form.

Condonation may be granted if the employee is  able to give good reasons for being late with the application. When applying for condonation the employee should focus on the following:

Application for condonation must be in the form of an affidavit.

See Affidavits.

The conciliation meeting

The commission will arrange a venue and time for the conciliation, and will inform both parties. 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 meeting is conducted in an informal way and the commissioner can meet the parties together or separately, as often as is needed. The commissioner has the power to subpoena any person to attend the meeting.

The commissioner must try to resolve the dispute within 30 days of it being referred to the CCMA or Bargaining Council. The employee/s and employer 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.

Who can represent employees and employers in a conciliation meeting?

Employees can be represented by a co-employee, or a trade union office bearer or official.. Paralegals may not represent employees in conciliation proceedings. The paralegal can ask to be present and can advise the employee during the meeting. If the employer objects to the paralegal being there, the employee can ask for a break to caucus and consult with the paralegal before making any final decisions.
The employer can be represented by an employee of the business (like the Human Resources Manager) or by a representative of an employers' organisation, but not an attorney. .

Successful conciliation

If the conciliation is successful, an agreement is reached which both parties must follow. If they do, the matter is resolved and ends here.

What happens if the conciliation agreement is not complied with?

If either party breaks the agreement, the other party may apply to the Labour Court to have the agreement made into a court order. These are the steps to follow:

Unsuccessful conciliation

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. The certificate will be sent to both parties by the commissioner's office.

Either 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:

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

If the parties believe that it is going to be too expensive to take the matter to the Labour Court, they can agree to have the matter arbitrated by the CCMA or Bargaining Council, even if the matter falls within the jurisdiction of the Labour Court.

Arbitration by the CCMA or Bargaining Council

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 union or employer's side. The arbitrator acts as judge to decide the dispute. Arbitration is usually used to settle disputes of right (in other words disputes about rights that already exist).

Under the LRA, the arbitrator is a commissioner from 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 by both parties.

How to refer a case for arbitration

If there is a Bargaining Council which regulates the sector that the parties work in, then the matter must be resolved according to the rules of that Council. Contact the relevant Council to find out what to do if the worker wants to refer the matter to arbitration. In some cases, even though there is a Bargaining Council, the arbitration may be done by the CCMA.

To refer the matter to the CCMA for arbitration:

The arbitration hearing

The CCMA or Bargaining Council will appoint a commissioner to arbitrate, will set the time and venue, and inform both parties. The arbitration hearing is relatively informal and the commissioner will encourage the parties to focus on the real merits of their cases, and to avoid legal technicalities.

After hearing evidence from both parties under oath, the commissioner can make a ruling that is legally binding and must be accepted by 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.

Who can represent employees and employers in an arbitration procedure?

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 employers' 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 LRA allows for lawyers to be present, and cases where the commissioner specially allows lawyers.

See Applying for legal aid.

Arbitration appeals

There is no appeal against an arbitration award.

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

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

Adjudication by the Labour Court

What is adjudication?

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

The Labour Courts are set up under the LRA and are based at the High Court in 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.

How to refer a case for adjudication

If a case goes to the Labour Court for a court judgement (adjudication), phone the Registrar of the nearest Labour Court to get the necessary referral forms. The judge will hear evidence from both sides and make a judgment.

Who can represent employees and employers in a Labour Court case?

Employees and employers are entitled to be represented by a lawyer in Labour Court cases. Legal Aid may be granted to pay for the employee's lawyer.

Adjudication appeals

A Labour Appeal 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.


Taking industrial action

Industrial action is used where employees want new or better conditions at the workplace and wish to use strike action in a ‘dispute of interest’ which involves creating new terms and conditions of their employment.. Stayaways, strikes, work stoppages, go-slows, work-to-rule, and union bans on overtime, and lock-outs, are all forms of industrial action. Industrial action can be protected (legal) or unprotected.

Protected industrial action complies with the rules and procedures set out in the Labour Relations Act (LRA). If the industrial action complies with the law, then employees may not be dismissed by their employer for taking such action.

Unprotected industrial action does not comply with the rules and procedures set out in the LRA. The courts are not sympathetic towards employees who go on an unprotected strike. If an employer dismisses employees who go on an unprotected strike, it is not likely that the court will help these employees.

When is industrial action not permitted?

Industrial action is not permitted when:

In all other cases, employees have the right to strike, and every employer has the right to lock-out, provided they follow the correct procedures first. This includes the right to strike over wages and conditions of employment, and to strike in solidarity with other legally striking employees.

What procedures must be followed before industrial action is protected?

In order for other strikes or lock-outs about disputes to be protected, workers or the employer must follow these steps:

If the employer locks employees out without following the procedures, the employees can immediately go on strike without following the procedures. If employees go on strike without following the procedures, the employer does not have to follow procedures to lock them out.

Where the employer illegally locks out the employees, a claim must be made against the employer because of this illegal lockout.

If an employer unilaterally changes conditions of employment

If an employer makes changes to employees' conditions of employment without negotiating with employees, employees can refer a dispute to the CCMA or Bargaining Council. They can then give the employer 48 hours notice to restore the status quo (to take things back to what they were) failing which they can go on strike.

When referring the dispute to the CCMA or Bargaining Council and giving notice to the employer, employees can demand:

or

The employees can demand that the changes must be delayed:

or

The employer must comply with the demand within 48 hours from the time it receives the notice failing which the strike can begin and the employees will be protected.

Employees' and employer's rights in protected industrial action

Trade unions

Employees can organise themselves into employee organisations called trade unions. A trade union is controlled, run and paid for by its members. Organised employees in factories elect shop stewards and committees to represent them and report back to them in the workplace. The shop stewards and employees discuss the problems in the workplace and the shop stewards take the employees' problems to the management.

What are the aims of trade unions?

Paying for the union - the subscription

When an employee joins a union, he or she will be asked to pay the subscription fee every month to become a member. These fees are also called 'subs'. The union uses the ‘subs’ pay for its expenses such as salaries for union staff, office rental, transport for union staff, etc.

The right of employees to form, join and take part in trade unions

The Constitution and the Labour Relations Act say that employees have the right to form and join trade unions. This right is called freedom of association. Employers are not allowed to make it a condition of employment that an employee must or must not belong to a trade union. It is the employee's choice. An employee also cannot be victimised because he or she is a member of a trade union. This means the employer cannot treat the employee unfairly or badly because the employee is a trade union member.

Trade union rights in the workplace

A registered union, that has less than 50% membership of the workforce but which is sufficiently representative (around 30% of membership of the workforce as members) can apply for these rights:

This percentage of membership is regarded as being ‘sufficiently representative’.

A registered union that has a majority (more than 50%) of the employees as members at a workplace, can apply for the above rights as well as the following:

The union applies to the employer for these rights. Within 30 days the employer must meet the union. They make a collective agreement about these rights. The union can ask the CCMA to intervene if the employer refuses. The CCMA will try to mediate and if that fails, will arbitrate.

Unions that belong to Bargaining Councils or Statutory Councils automatically have these rights, even if they don't have many members at a workplace.



Social Welfare and Benefits in the workplace

Unemployment Insurance Fund

The government has established the Unemployment Insurance Fund (UIF) with the aim of providing short-term relief to employees when they become unemployed, or are unable to work because of illness, maternity or adoption leave and also to provide relief to the dependants of a contributor who has died. If an employee becomes unemployed, the UIF will pay the employee for a maximum period of 6 months while that employee is unemployed. Employees, companies and the state contribute to this fund.

There are five kinds of benefits covered by UIF:

For more information on the UIF look up the Department of Labour website: www.labour.gov.za

Who is a contributor to the UIF?

All employees that work for more than 24 hours per month must contribute to the Fund. It is illegal for employers not to make the deductions from the employee’s earnings. Even people earning high salaries (unless they are earning commission only) must contribute to the Fund, regardless of how much they earn. The Fund sets a ceiling amount of R149 736 per year (or R12 478 per month, or R2879 per week). Any employee who earns above this threshold will only contribute up to this amount. If they become unemployed they will receive benefits at the level of the ceiling.

Note: An  increase to R14 333 per month is due to be ratified but is not yet in place (2011)

Example
Vernon is a company administrator and he earns R15 000 per month. The current threshold for UIF is R12 478 per month so Vernon will pay 1% of R12 478 and the company will pay 1% of R12 478 every month on his behalf to the UIF. If Vernon becomes ill and wants to claim Illness Benefits, the UIF will only pay him a percentage of R12 478 (not of his current salary of R15 000). The actual amount he will be paid will depend on the number of days he has been contributing to the Fund.

Who is not covered by UIF?

Certain employees do not contribute to the Fund and they therefore cannot claim from the Fund if they are unemployed. The following people are not covered by UIF:

See Immigrants and migrants.

How do employees become contributors to UIF?

In terms of the Act all employers have to become registered with the UIF and make a declaration of all their employees to the UIF. Whenever there is a change of staff, for example, new appointments made or contracts terminated, employers must inform the UIF of these changes. So, there are two very important things an employer must do when employing an employee:

See Problem 13: Employer does not register employee with the UIF.

How much do employees contribute to the Fund?

Every week (or month, if the employee is monthly paid), the employer deducts 1% of each employee’s wages for UIF. This works out to 1c for every R1 the employee earns. The employer also pays 1% of the employee’s wage. So, for every cent the employee pays to UIF, the employer pays the same. The company then sends all these contributions to the South African Revenue Services (SARS) (if the company is registered with SARS for tax purposes (PAYE) or for Skills Development Levies (SDL)). The Unemployment Insurance Contributions’s Act says all employers have to submit their UIF payments together with their payments of PAYE and SDL before the 7th of each month. This is all written on one form called the EMP 201 return form (the form used to submit returns to SARS).

See Small Business Law, UIF.

Where employers are not required to register with SARS for PAYE or SDL purposes they must pay the UIF contributions to the Unemployment Insurance Fund using the UF 3 return form.

How much do people get paid when applying for benefits?

In the case of unemployment, illness, adoption and dependents benefits, benefits will be paid for a maximum of 238 days (34 weeks) or for the number of days credits that the person has built up during the 4 years leading up to the application for benefits. Credits are given to employees as they work and contribute to the Fund. Employees can earn credits in the following way: for every 6 days that an employee works and contributes to the Fund, they receive 1 day’s credit. So, to qualify for the full 238 days credits the employee must work and have been contributing to the Fund for at least 4 years  and not have claimed any days benefits during that period (except maternity benefits).

In the case of maternity benefits, a total of 121 days will be paid if there are enough credits available.

The employee is regarded as having contributed to the Fund from the first day of employment to the day that the services are terminated. A notice period worked before termination of service, is also regarded as a period employed

The rate at which benefits are paid shifts from 38% for highly paid employees to 58% for lowest paid employees.

When is a contributor not entitled to receive benefits?

An employee who has been a contributor to the Fund is not entitled to receive benefits if the contributor:

Types of UIF benefits

UIF pays five kinds of benefits:

Unemployment benefits

These benefits are for employees who lose their jobs because they have been dismissed or retrenched, or when the employees’ contract expires. If a worker resigns from the job then they will not qualify for benefits unless the worker can prove it was a constructive dismissal.

To get unemployment benefits the employee must satisfy the following conditions:

Benefits will be paid for a maximum of 238 days (34 weeks) or for the number of days credits that the person has built up during the 4 years leading up to the application for benefits. The employee must report at times and at places that the claims officer determines in order to sign the unemployment register and he/she must undergo training and vocational counselling if the claims officer tells him or her to do this. If the contributor refuses to do this without a good reason, he/she will not be entitled to benefits. Employees who leave to go and study or to go on pension cannot claim UIF, because they are not available for work. Employees who go on a company, Bargaining Council or civil pension can claim UIF, as long as they say they are still available, able and willing to work.

Illness benefits

Employee can claim illness benefits if they are off work because of illness for more than two weeks. Benefits are paid from the date on which the employee stopped working because of illness.

To get illness benefits the employee must satisfy the following conditions:

If the employee has been paid by the employer during the period of illness, then the benefits paid by the Fund will be the difference between what the employer paid and the benefit that the employee would have been entitled to.

Benefits can be paid up to maximum of 238 days in any period of 4 years, depending on the number of credits an employee has earned.

Maternity benefits

Maternity benefits can be paid to a contributor who is pregnant. Section 25 of the Basic Conditions of Employment Act says a pregnant woman can take maternity leave at any time from 4 weeks before the expected date of birth and she may not work for six weeks after the birth.

Benefits can be paid to a maximum of 121 days or 17.32 weeks in any period of 4 years.

If an employee has applied for maternity benefits this does not affect her right to claim unemployment benefits.

To get maternity benefits the worker must satisfy the following conditions:

If there is a miscarriage or a stillborn child, then benefits are paid for a maximum of 6 weeks after the miscarriage/stillbirth.

If the employee has been paid by the employer during the period when she was off on maternity leave, then the benefits paid by the Fund will be the difference between what the employer paid and the benefit that the employee would have been entitled to.

Adoption benefits

A person who legally adopts a child less than 2 years old and who leaves work to look after that child, can now claim adoption benefits from the Fund from the date of adoption.

Only one of the adopting parents can apply for benefits.

Benefits are paid from the date on which the Court grants an order for adoption.

To get adoption benefits the employee must satisfy the following conditions:

If the employee has been paid by the employer during the period when he or she is off caring for the adopted child, then the benefits paid by the Fund will be the difference between what the employer paid and the benefit that the employee would have been entitled to.

Dependant’s benefits

If a employee dies while working, the dependants can claim dependant’s benefits from the Fund. A dependant can be:

To get dependant’s benefits the employee must satisfy the following conditions:

If the surviving spouse or life partner does not make a claim within 6 months, then a dependant child can apply for the benefits, provided that the claim is made within 14 days after the 6 months has expired (during which the spouse should have applied).

Benefits can be paid up to maximum of 238 days in any period of 4 years, depending on the number of credits an employee has earned.

The benefits that are paid are equal to the unemployment benefits that would have been paid, if the person was still alive.

How do employees claim UIF benefits?

Claiming unemployment benefits

  1. Register for UIF within 6 months after becoming unemployed at the employment office closest to where the employee lives.
  2. Sign the unemployment register (this is called 'signing on').

Usually you must sign this register at the employment office 4 weeks or whenever told to do so by the UIF clerk. If you miss signing, the benefits could be delayed for a long time, as you will have to re-register. If you are ill on one of the signing dates, you must bring a doctor's letter the next time. (See Problem 14: Failing to sign the unemployment register)

You must say that you are available to work, or else benefits will not be paid out. If you are offered work, then you must be available to work. Sometimes employees are told to go to different companies and to ask for work. They get a form that the companies must fill in and sign showing that they have no jobs available.

3. You should start getting money within 8 weeks after applying for benefits. After that you should get money every 4 weeks or so, until all the benefits are used up. Benefits will be paid into the beneficiary’s account.

See Problem 12: Application for UIF benefits is too late.

Claiming illness benefits

An employee will not get illness benefits:

The claims officer decides whether the employee's refusal or neglect is unreasonable.

To apply for illness benefits, you must register at the employment office closest to where you live. If you are too ill to go to the UIF office, a friend or family member can bring you the form to sign.

See Illness benefits.

Illness benefits are claimed on FORM UF86. The doctor who is treating you must complete paragraph 15 of this form. This is a medical certificate. The rest of the form is completed by people working at the employment office. If you are also unemployed, in other words, you have also lost your job, you must tell the claims officer that you are unemployed. But if you still have a job and are on unpaid sick leave, then you only need FORM UF86.

Once the application for illness benefits is approved, the labour centre will post FORM UF87 to you. This form must be signed by the doctor as soon as possible. You then fill in the rest of the form and return it to them. No illness benefits will be paid until you have returned the completed FORM UF87. You will only be paid for the period the doctor books you off work.

If you are dismissed when you are ill and the doctor has laid you off for less than 6 months, the balance can be claimed as unemployment benefits.

Illness benefits are not paid for the first 2 weeks off work. But if the illness lasts longer than 2 weeks and illness benefits are paid, then you will receive benefits for any period in the first 2 weeks for which you did not get normal wages.

Illness benefits can be paid in one lump sum or in several payments. The amount will be paid into a bank account.

Claiming maternity benefits

Employees apply for maternity benefits in the same way as for illness benefits.

If you are pregnant and want to apply for maternity benefits you must go to the nearest employment office yourself and make the application. If you are too ill, you can organise for someone else to go in your place.

When you register for maternity benefits you will get FORM UF92. This form must be filled in by a doctor. You must take the form back to the employment office.

Staff at the employment office may ask you to go to the doctor again or to visit the labour centre at certain times. You must do what they ask, or you may not be able to claim.

Maternity benefits will be paid into a bank account

You can apply for further benefits after your baby is born on FORM UF95. This form must be signed by the doctor who delivered the baby. An employee can get these benefits even if the baby was stillborn. If you are also unemployed, then you must tell the claims officer. But if you are on unpaid maternity leave, you will only need to fill in forms UF92 and UF95.

Benefits are paid for a maximum of 121 days or 17.32 weeks depending on the number of credits the employee has.

See Maternity benefits.

Claiming adoption benefits

Adoption benefits will not be paid if an application is not made within 6 months of the order of adoption being issued.

An employee should take the following documents to the employment office to apply for adoption benefits:

Adoption benefits will be paid into a bank account Payments are paid out until all the benefits are used up.

See Adoption benefits.

Claiming dependants benefits

Dependant’s benefits can be claimed by the husband/wife or life partner of the deceased employee and any minor children of the employee.

The application for benefits must be made within 6 months of the death of the contributor or for the dependent within 2 weeks after the 6 months if the surviving spouse did not claim any benefits.

The surviving spouse or life partner must complete FORM UF126 when applying for dependent’s benefits. He or she must take the following documents to the Department of Labour office when applying for benefits:

If these documents are lost, then the wife/husband or life partner should make a statement at the Labour office. A child or wife/husband of the deceased employee must complete FORM UF127 when applying for benefits. Any dependant who wants to claim dependent’s benefits must take the following documents to the employment office:

OR
if the dependant is a husband or wife, the marriage certificate

The employment o`ffice will give the dependant FORM UF128. This form must be filled in by the last employer of the deceased worker. The child or dependant must then take the form back to the Labour office.
Remember that only one person can claim dependent’s benefits. The wife or husband of the employee who died is given preference.

The money for dependent’s benefits is paid in one lump sum in the beneficiary’s bank account. The amount that is paid will be the same as the total unemployment benefits that the deceased employee could have drawn at the time of the death.

(See How much do employees get paid?)

If an employee dies after claiming all the UIF that is owed to him/her, there will be no money left for dependent’s benefits.

How to get copies of birth/marriage/death certificates

Go to your local Home Affairs office and request the certificate you require:

Don’t forget the following information:

What if the UIF benefits are used up and the worker is still unemployed?

If you are still unemployed by the time your UIF benefits have been used up, then you can apply for an extension of unemployment benefits. For an extension of ordinary benefits, you must apply on form UF139. You must write down on this form details of where you have tried to find work. The form must be handed in at a labour centre. If you have received illness benefits you can apply for extension of illness benefits on form UF140. This includes a medical certificate to be completed by the doctor.

The UIF treats all applications for extension of benefits on merit. This means they decide whether they think you have good reasons to get more benefits. There is no automatic right to an extension. Extension benefits are not easy to get. Three years is the maximum time for which normal benefits are paid out.

But it helps to prove that:

What if the application for normal benefits is refused?

If an application is refused the applicant will be sent a registered letter informing them of the decision of the UIF. The letter sets out the reasons for the refusal. You can appeal against the refusal.

UIF appeals

If your application for UIF benefits has been turned down, you or your representative must write to the Regional Appeals Committee within 3 months (or 90 days) of being told that benefits will not be paid out.

What must be included in the appeal?

All this information must be set out in a statement which the employee must sign.

Address the letter to the Regional Appeals Committee of the Provincial office of the Department of Labour.

Further appeals

If the Regional Appeals Committee again refuses the application, then you can appeal to:

The National Appeals Committee
PO Box 1851
Pretoria
0001

Termination of benefits

Benefits stop if:


Compensation Fund

The Compensation Fund provides compensation for employees who get hurt at work, or sick from diseases contracted at work, or for death as a result of these injuries or diseases.

The Compensation Fund is covered by the Compensation for Occupational Injuries and Diseases Act (No 130 of 1993) (COIDA) and the Compensation for Occupational Injuries and Diseases Amendment Act (No 61 of 1997). The Compensation Commissioner is appointed to administer the Fund and approve claims of employees. Where an employee is entitled to receive compensation from the Compensation Fund, the Fund, and not the employer, will pay the employee.

Go to the Department of Labour website for more information on the Compensation Fund: www.labour.gov.za

When can a employee claim compensation?

Employees who are drivers or who have to be transported as part of their work may be involved in motor vehicle accidents while working. Motor vehicle accidents at work are covered by the Road Accident Fund Act. The accident must be reported to the Compensation Commissioner, and will follow the normal Compensation procedure, but the money will be paid by the Road Accident Fund.

See Motor Vehicle Accidents while working.

Who can claim compensation from the Fund?

Any person who is employed or being trained by an employer, and is injured or gets sick on or because of the job can claim compensation. The following employees cannot claim compensation from the Fund:

The Act says an employer has to pay compensation to the injured employee for the first 3 months from the date of the occupational injury. Thereafter, the Compensation Fund will pay. The Compensation Fund will repay the employer for the money that was paid.

Who contributes to the Fund?

Employers pay into the Compensation Fund once a month (based on a maximum amount of earnings of R277860.00 per employee). Employees do not pay anything to the Fund, so employers cannot deduct money from employees' wages for this. The following employers do not have to pay into the Fund:

These employers are still covered by the Act and claims are made to and decided by the Commissioner. The only difference is that the payouts are made by the insurance fund of the employer (not by the Compensation Fund).

When will the Fund not pay compensation?

Occupational diseases and injuries

Diseases

Occupational diseases are illnesses caused by substances or conditions that the employee was exposed to at the workplace. Schedule 3 of the Compensation for Occupational Injuries and Diseases Act sets out the working conditions and diseases caused by these conditions that are covered by the Compensation Fund. An employee can claim compensation if exposed to these working conditions and then getting the related disease. If a disease is not listed then employees can claim compensation only if they can prove that the disease was caused by conditions at work and not by some other factor. Medical evidence and reports will have to be submitted to the Commissioner. It may also take some time for a disease to become obvious and in such cases employees can claim compensation if they are no longer at a workplace so long as it falls within the time limits for lodging claims.

See Problem 20: Employees develop a work sickness.

The Commissioner will approve or reject the claim. Only if the Commissioner approves the claim, will you get compensation (for temporary or permanent disability) and your medical expenses will be paid. If the disease gets worse after a period of time, you can apply to have your compensation increased.

Injuries

Injuries covered by the Compensation Act are only those that occur as a result of or at work. Compensation is paid for temporary and permanent disabilities that lead to a loss of earnings.

Motor vehicle accidents while working

If a motor vehicle accident happens while an employee is doing their job, then they can get compensation from the Compensation Fund. But if they are injured in a motor vehicle accident caused by someone else's negligent or unlawful driving, even if this is on the job, they can also make a third party claim from the Road Accident Fund. The money received from the Compensation Fund will be taken off the third party payment. For example, if the Road Accident Fund agrees to pay damages of R15 000, but the Compensation Fund has already paid R10 000, then the employee will only get R5 000 damages from the Fund.

An employee cannot sue their employer for damages if they were injured on the job. But if the employer caused injury to an employee while they were NOT on the job, then the employee could sue him or her.

What types of compensation payment are made?

Compensation is paid for getting injured at work or for diseases caused by work. There are four main types of compensation payments. These are:

Compensation is always worked out as a percentage of the wage the worker was earning at the time the disease or injury is diagnosed. If the worker is unemployed by the time a disease is diagnosed the wage they would have been earning must be calculated.

The Compensation Fund does not pay for pain and suffering, only for loss of movement or use of your body.

Temporary disability

Temporary disability means the employee does eventually get better. If an employee is off work for 3 days or less, no compensation will be paid (the employee can claim sick leave from the employer). If the employee is off for more than 3 days, the employee gets compensation which also covers the first 3 days. Temporary disability can be total or partial:

Example

Thabiso’s wages are R500 per week.
What would his Compensation be for a temporary total disability?

Multiply weekly wage by 4.3 : R500 x 4.3 = R2 150 per month

Monthly wage x 75 ÷ 100

R2150 x 75 ÷ 100 = R1612.50

Thabiso would get R1612.50 per month from the Compensation Fund for Total Temporary Disability

For an occupational disease, use the wage at the time of the diagnosis and not at the time when the employee first got exposed to the disease. If the employee is now unemployed, use the wage that he or she would probably have earned if still employed. Compensation for temporary disability will be paid for up to 12 months. If the condition of the employee has not improved after 12 months, the Commissioner may agree to continue payments for up to 24 months. After 24 months the Commissioner may decide that the condition is permanent and grant compensation on the basis of permanent disability. The Commissioner also pays all medical accounts, including medicine for which accounts must be submitted.

See Problem 16: Employee does not get the correct amount of Compensation money.

Permanent disability

Permanent disability means that an employee never fully recovers from the injury or sickness. A permanent disability can completely prevent an employee from working, or it can just inconvenience an employee. Most serious is called 100% disability, and least serious is called 1% disability. A doctor must write a medical report about the disability. The Commissioner, with the help of a panel of doctors, works out the degree of disability. The degrees of disability are set out in Schedule 2 of the Compensation for Occupational Injuries and Diseases Act. Some examples are:

Compensation for permanent disability is paid either as a monthly pension or as a lump sum:

The formula for the monthly pension is:

[monthly wage x (75 ÷ 100)] x (percentage disability ÷ 100)

This amount will be paid once a month for the rest of the worker's life.

(monthly wage x 15) x (percentage disability ÷ 100)

This amount will be paid once only and there will be no further payments.

Death benefits

Compensation can be claimed by the widow or dependants if an employee dies as a result of a work-related accident or disease.

Claimants for death benefits must submit certified copies of the following documents:

Who can claim Compensation when an employee dies in the course and scope of duty?

The total monthly pension per family cannot be more than the pension the deceased worker would have received if he/she was 100% disabled (i.e. 75% of the monthly wage).

Medical expenses

All the medical expenses of a worker will be paid for a maximum of two years from the date of the accident.

Additional compensation

If a employee is injured, dies or contracts an occupational disease because of the negligence of the employer, or a defect in machinery or equipment, the employee can get extra compensation for temporary or permanent disability. Any employee who is under 26 years old at the time of an injury or disease will get extra compensation.

An application for additional (increased) compensation must be made on a form W930 within 24 months of the injury, The Commissioner can extend the period if good reasons exist.

Steps to claim disability

  1. The employee must inform the employer, supervisor or foreman of the accident, injury or disease verbally or in writing.
  2. The employer must report the accident or disease to the Compensation Commission within 7 days for an injury and within 14 days after gaining knowledge of an alleged occupational disease. The employer must report it, even if they do not believe the injury or disease is work-related. If the employee is unemployed by the time a disease is diagnosed, the employee can send forms directly to the Commissioner.
  3. Part of the form must be given to a doctor to complete, to check that the injury or disease falls under the Compensation Fund.
  4. The doctor must send a First Medical Report (W.CL.4) detailing the disease or seriousness of the injury, and the likely period the employee will be off work. This must be done within 14 days of seeing the employee.
  5. The employer must send the First Medical Report to the Commissioner
  6. If the employer refuses to complete and send the form, the employee or a representative may send a form direct to the Commissioner. The Commissioner will instruct the employer to fill in the right form.
  7. The doctor must also send Progress Medical Reports (W.CL.5) monthly while treatment is carried on. If the employee's condition has not improved after 24 months, the Commissioner may decide that the condition is permanent and grant compensation for permanent disability.
  8. The doctor must send in a Final Medical Report, stating either that the employee is fit to return to work or that the employee is permanently disabled.
  9. The doctor submits this form to the employer, who sends it to the Commissioner. Anyone else can send the medical reports to the Commissioner, as long as the claim number is on the form.
  10. The employer sends in a Resumption Report (W.CL.6) to the Commissioner, when the employee starts work again or is discharged from hospital. The employer also fills in this form to claim back the compensation money the employer paid to the employee during the first 3 months he or she was off work.

How is the compensation money paid?

The compensation office waits until it has all the forms and only then does it pay.

See Problem 15: Long delay in paying compensation.

Temporary disability

The compensation office sends the money to the employer who gives it to the employee.

Permanent Disability

Lump sum -The money is paid to the employer. If an employee is no longer working for the same employer, they must leave details of their address with the employer.

Pension - This is paid out monthly for the rest of a person's life. The disabled employee can decide where the compensation office must send the pension, for example to a bank account. Pensions are always back-paid to the date of the accident.

If employers do not send in the forms or the claims takes long, employees must contact the nearest labour centre and report it.

Objections and appeals

See Problem 19: Employee’s compensation has been refused.


Employees and income tax

What is employee’s tax?

Employees’ tax is the tax that employers must deduct from the income of employees (salaries, wages, bonuses, etc.) and pay over to SARS every month..

Employees’ tax consists of two parts, SITE and PAYE.

What is SITE?

The threshold for 2011/2012  is R60 000. This means that anyone earning below R60 000 in the 2011/2012  year will pay SITE.

SITE is deducted by the employer from the daily, weekly, or monthly earnings of an employee and paid to SARS every month. Examples of earnings from which SITE is deducted include salaries, wages, bonuses, overtime pay and fringe benefits.

What is PAYE?

PAYE stands for Pay-As-You-Earn. PAYE is the tax that is deducted by an employer from an employee’s income where their income is higher than the SITE threshold, in other words, if the income is higher than R60 000.

When must an employee pay tax?

Every employee who earns more than a certain amount (known as the “threshold”) in a year of assessment must pay income tax. The threshold amount for the 2011/2012 year of assessment is R59 750 if you are under 65 years,  R93 150 if you are between 65 abnd 75 years, and R104 261 if you are older than 75 years.  For example, if you are 66 years old you can earn up to R93 150 for the 2011/2012 tax year without having to pay tax; if you are 55 years old and you earn RR58 000 for the 2011/2012 tax year, you will also not have to pay tax because you are earning below the tax thresholds. Once you earn more than these amounts, you will be taxed either according to the SITE or PAYE tax tables on what you earn.

A year of assessment for an individual consists of twelve months starting on 1 March and ending on the last day of February of the following year.

How much tax do you pay?

This depends on:

  1. How much you earn (including overtime or bonuses, and before deductions).
  2. Your age (whether you are under 65 or over 65).
  3. Whether you are a member of an officially recognised pension fund or pay towards a retirement annuity fund. The amount you pay into a pension scheme or a retirement annuity fund can be DEDUCTED from your wage before tax is calculated. This means you will pay less tax, because the tax is worked out on a lower income. Under SITE only contributions to a pension fund or a retirement annuity fund can be deducted from the wage. Contributions to a Provident Fund cannot be deducted.

After the deduction for pension or a retirement annuity fund, the rest of your wage is taxed according to different rates. The rate you pay depends on how much you earn, and is calculated from tax tables issued by the South African Revenue Services (SARS).

The tax tables will determine what rate of tax you will have to pay.

What information must you give to employers?

When you become employed you must fill in an IRP2 form. The tax deducted depends on the information that you fill in on this form.

If you are over 65 years old you must notify your employer. Also tell the employer if you pay towards a retirement annuity fund, because you will then pay less tax.
If you do not fill in an IRP2 form at all, the employer will tax you at the highest possible rate.

Rebates

A rebate is an amount of money taken off the tax after your tax rate has been worked out. This means the tax you pay is lower. You can get different types of rebates. There is a primary rebate and an age rebate (if you are over 65 years).

Tax on bonus pay and retrenchment pay

Bonus pay is always added to the wage and then the whole amount is taxed. So the income that is taxed is higher than the normal wage, and the tax you pay will also be higher.

Part-time work and casual work

PAYE must be deducted at a rate of 25% in respect of all employees who:

Examples include:

The following people are exempt from this:

Tax Assessments

Once a year, your employer must issue you with an IRP5 tax certificate that shows the total wages that you earned and the total tax that was deducted.

If you earn less than R120 000 a year, you will not have to submit a tax return provided certain criteria are met. Check the SARS website for more information www.sars.gov.za.

If you earn more than R120 000 a year the SARS does an assessment of your earnings when you fill in a 'tax return'. You fill in a tax return form and send it with the IRP5 to the SARS.

Assessment means checking up on the tax you pay to make sure you haven't paid too much or too little tax.


Pension and provident funds

The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment. The fund also usually pays benefits when a member dies while still working, or is unable to work because of illness, or is retrenched.

The main difference between a pension fund and a provident fund is that if a pension fund member retires, the member gets one third of the total benefit in a cash lump sum and the other two-thirds is paid out in the form of a pension over the rest of the member's life. A provident fund member can get the full benefit paid in a cash lump sum. Pension funds also offer better tax benefits to employees. An employee’s contributions to a pension fund are deductible for tax, while contributions to a provident fund are not. There are advantages and disadvantages to both types of funds. It will depend on a person’s own financial needs. However, one of the strongest arguments in favour of provident funds and the lump sum payment concerns the means test used to work out whether a person qualifies for a state old age pension. Usually if a person receives a private pension, that person is disqualified from receiving a state old-age pension. If a person gets a lump sum payment then that person may also qualify for a state pension in some cases.

How does a pension or provident fund work?

If it is a workplace pension fund, money goes into the fund through contributions from employers and employees. An employee cannot get money back from a fund except as benefits according to the fund rules. Employees can also invest privately in their own pension or provident funds where there is no workplace pension or provident scheme in place.

Types of funds and benefits

Different workplace funds have different kinds of benefits, for example:

Not all funds provide all these benefits. To understand how any fund works, the member must read the rules of the fund.

Bargaining Council funds

A pension or provident fund may be established by a Bargaining Council Agreement. The Bargaining Council Agreement will lay down the rules for the pension or provident fund. Usually all employees who fall under a Bargaining Council Agreement have to become members of any fund set up by that Bargaining Council, unless their employer has de-registered from the fund and set up their own fund.

Bargaining Council funds do not allow an employee to withdraw benefits if he or she leaves one company to go and work for another company in the same industry. Usually an employee can only withdraw benefits after a year of leaving the company, if he or she is still unemployed or was re-employed outside the industry. If the employee is re-employed in the same industry before one year is up, then contributions carry on as if there was no change in job.

Complaints about payments from pension funds

Any person who has a complaint about benefits from a pension fund can make a complaint to the Pension Funds Adjudicator.

The Pension Funds Adjudicator

The law says you must first send your complaint in writing to the pension fund or to the employer. The pension fund or employer then has 30 days to reply to the complaint. If they don't reply, or if you are not satisfied with the reply, then you can send an official complaint to the Pension Funds Adjudicator. Include your letter to the pension fund or employer, and their reply. After you have made a complaint to the Pension Funds Adjudicator, the Adjudicator gives the pension fund 30 days to reply. Once the Adjudicator has received the pension fund's reply, they will look at the facts and decide who is right.

The Pension Funds Adjudicator does not deal with government pension funds. If a person who works for the government has got a complaint about a government pension then they must send their complaint to the Public Protector.

See Problem 2: Making a complaint to the Public Protector.

There is no charge to make a complaint with the Pension Funds Adjudicator.

See How to write a complaint to the Pension Funds Adjudicator.
See Resources, for contact details of the Pension Funds Adjudicator.

Who can make a complaint to the Pension Funds Adjudicator?

The following people can make a complaint to the Pension Funds Adjudicator:

Time limits

You must get your complaint to the Pension Funds Adjudicator within 3 years of the problem arising.


Medical aid schemes for employees

A medical aid scheme helps members to pay for their health needs, such as nursing, surgery, dental work and hospital accommodation. It is a type of insurance scheme. For this service, members and their employers pay regular contributions to the scheme. The law says that medical aid schemes must pay for medical expenses such as hospital, doctor and dentist bills, medicines and other medical services like special dentistry and physiotherapy. Some schemes offer more than this.

Advantages and disadvantages of medical aid schemes

The advantages of a medical aid scheme are that:

The disadvantages of a medical aid scheme are:

The Medical Schemes Act

The Medical Schemes Act (No 131 of 1998) has made the following changes to medical aid schemes:

This means that people living with HIV or AIDS can no longer be turned away from medical aid schemes on grounds of their medical condition. The minimum medical benefits included for HIV-related illnesses include hospital admissions as well as necessary medical treatment. The treatment for people with AIDS-related illnesses also continues until death.

The Act also sets out a complaints procedure for people who have a complaint against a medical aid scheme.


Skills Development Act

The Skills Development Act No 97 of 1998 was passed in order to develop and improve the skills of people in the workplace. The Act does the following:

The Department of Labour has published a guide called ‘An employer’s guide to the Skills Development Levy’. If you need more information contact your nearest Labour Centre for a copy.

The National Qualifications Framework (NQF)

The NQF is a plan for education and training. The aim is for people to continue accumulating qualification credits as they learn and work. The Skills Development Act defines the following structures to implement the NQF:

The Skills Development Levy-Grant scheme

The Skills Development Levy was established under the Skills Development Act. A levy is an amount of money that employers have to pay to the South African Revenue Service (SARS) for skills development of employees. If employees undergo training then the employer can claim this amount back from the relevant SETA.

Paying the Skills Development Levy

An employer must pay a skills development levy every month if:

The employer must register with SARS and pay the levy monthly. SARS will supply the correct forms to fill in (SDL 201 return form). The levy must be paid to SARS not later than 7 days after the end of every month.

How are the levies used?

The levies paid to SARS are put in a special fund. 80% of the money from this fund will be distributed to the different SETAs and the other 20% will be paid into the National Skills Fund. The SETAs will then pay grants to employers who appoint a Skills Development Facilitator. The National Skills Fund will fund skills development projects that don't fall under the SETAs.

Getting a Skills Development Grant

An employer can get money back from the SETA or the National Skills Fund to use on training and developing their own employees' skills. To qualify for a Skills Development Grant an employer must:

An employer can get back 50% or more of the levies they paid to SARS. These grants are called Grants A, B, C and D. This is how the grant system works:

Grant A - When an employer appoints and registers a Skills Development Facilitator, then Grant A is paid back to the employer. This is 15% of the levy paid to SARS by the employer. Employers can only get Grants B, C and D if they have got grant A.

Grant B - When the employer sends in a workplace skills plan to the relevant SETA and the SETA approves the plan, then Grant B is paid. This is 10% of the levy paid to SARS by the employer. Employers can only get Grant C if they have got grant B.

Grant C - When the employer sends an annual training report based on the approved workplace skills plan, then Grant C is paid. This is 20% of the levy paid to SARS by the employer.

Grant D - SETAs may pay out grant D for specific sector skills initiatives in the workplace. Grant D is 5% of the levy paid to the Fund by the employer.

If employers do not meet the requirements for recovering a grant then they lose the grant.

Skills Development Facilitators

The Skills Development Act makes provision for the employment and use of a Skills Development Facilitator by an employer. This person is responsible for developing and planning the skills development strategy of a business for a specific period. The Skills Development Facilitator must do the following tasks:

An employer can appoint an employee or a formally contracted person from outside the business to perform the functions of a Skills Development Facilitator.


PROBLEM 1: Money is deducted from a employee's wages

Jerry is a petrol pump attendant who works for Speedy Garage. He comes to you with a problem. He is in charge of taking money from the other petrol pump attendants and of giving them their change. At the end of every day the money is cashed up by the cashier. On the days when the money is short this is noted in a book. At the end of the week all these shortages are counted up and the total amount is deducted from Jerry’s wages. From the pay slips that he brings to you, it seems that every week deductions are made for shortages.

What does the law say?

The law says that an employer cannot make deductions from the wages of an employee except in certain circumstances.

See Deductions.

What can you do?

You can take the following steps:

  1. 1. Find out whether the employee is covered by a Bargaining Council Agreement or Wage Determination, or other agreement about terms and conditions of employment. In this case Jerry is covered by the Bargaining Council Agreement for the motor industry. This agreement says that any deductions from wages are unlawful.

See How do you know which law applies to an employee?

  1. Contact the manager of the garage and ask him or her for the reasons for the deductions. Explain that such deductions are unlawful. Quote the section number from the Bargaining Council Agreement.
  2. Write a letter to the employer giving all the details of the deductions, the weeks, the amounts deducted, and the amount the employee is claiming.

See Model letter of demand to employer for notice and leave pay.

  1. If the employer will not pay back the amounts owing to Jerry, write a letter of referral to the Bargaining Council asking them to investigate the problem. Explain to them what steps you have already taken to try and sort out the problem.

See Model letter to Department of Labour about a notice and leave pay claim.


PROBLEM 2: Employee wants to claim notice pay and leave pay

Faizel lost his job. He was dismissed without any notice and paid no money in lieu of notice. He was also not paid any leave pay that he believes was owing to him. He does not want to get his job back. He only wants to claim the notice and leave money that is owing to him.

What do the law say?

  1. Whether he was fairly or unfairly dismissed, Mr Ngome has a right to his notice and leave money.
  2. The amount of notice and leave pay owing to him depends on which wage regulating measure he falls under.

See How do you know which law applies to an employee?

  1. If Faizel was unfairly dismissed, he may be able to claim compensation from the employer.

See Problem 4: Dismissed employee wants the job back (How to apply for reinstatement or compensation).

What can you do?

You can take these steps to claim the money owing:

  1. Check which wage regulating measure protects this particular industry, in other words, whether it is a Bargaining Council Agreement or Wage/sectoral Determination or the Basic Conditions of Employment Act and work out what amounts are owing by the employer to Faizel for payment in lieu of notice and outstanding leave pay.
  2. Write a letter to the employer stating Faizel’s claim.

See Model letter of demand to employer for notice and leave pay.

  1. If the employer refuses to pay Faizel the money that is owing, refer Faizel with a covering letter to the relevant Bargaining Council or Department of Labour. Alternatively post the letter. The letter must say exactly what the claim is and what steps have been taken to sort out the problem. If the employer is found guilty of not complying with the Bargaining Council Agreement or the BCEA, the relevant inspector can order the employer to pay Faizel. If the employer refuses to pay Faizel, the inspector can refer the matter to the Director General of Labour.

See Model letter to Department of Labour about a notice and leave pay claim.

  1. Faizel has the right to bring a private civil claim against the employer, either in the Small Claims Court or in the Magistrate's Court.

See Small Claims Court.

See Summary of provisions in BCEA (if he falls under the BCEA).
See Enforcement of the BCEA.
See Enforcement of a workplace-based collective agreement.
See Enforcement of a sectoral determination.


PROBLEM 3: Employee is paid below the minimum wage

Thabiso is employed by Fix-it Tiles. The company makes plastic floor tiles. She thinks that they pay her less than the minimum wage which the law says she should be paid. She wants to know if this is correct.

What does the law say?

  1. Collective agreements, Bargaining Council Agreements, sectoral determinations and Wage Determinations may set out minimum wages. The Basic Conditions of Employment Act (BCEA) does not lay down minimum wages. If the company is only covered by the BCEA, then there is no minimum wage that they have to pay Thabiso so she will have no claim.
  2. Thabiso has the right to claim the wages that she was promised when she started working for the company.

What can you do?

  1. Check which wage regulating measure protects the company that Thabiso works for, for example, a Bargaining Council Agreement or Wage Determination, BCEA.

See How do you know which law applies to an employee?

  1. Once you have established this, check whether there is a minimum wage for the industry. If so, find out what the minimum wage should be for Thabiso. If she is being underpaid according to a BC agreement or Wage Determination, you can take these steps:

See Model letter of demand to employer for notice and leave pay.

See Model letter to Department of Labour about a notice and leave pay claim.

  1. If Thabiso is covered by the Basic Conditions of Employment Act, then there is no minimum wage. There is nothing you can do to help her.

See Summary of provisions in BCEA (if he falls under the BCEA).
See Enforcement of the BCEA.
See Enforcement of a workplace-based collective agreement.
See Enforcement of a sectoral determination.


PROBLEM 4: Dismissed employee wants the job back - How to apply for reinstatement or compensation

Maisie is dismissed from her job for ongoing lateness in arriving at work. She says the dismissal was unfair because she relies on public transport and she can’t help it if the trains always run late. She wants to get her job back.

What does the law say?

The law says that a person who is constantly late for work without good reason can be dismissed on grounds of misconduct or incapacity (poor performance).Generally, for late coming, Maisie should have received written warnings and possibly a final written warning before the decision was taken to dismiss her.  If Maisie was dismissed for an unfair reason (substantive unfairness), she may be able to be reinstated or compensated. If she was dismissed for good reason but the employer didn't follow the proper procedures (procedural unfairness), it is more likely that she will be compensated but not reinstated.

See Substantive fairness.
See Procedural fairness.

What can you do?

Find out whether she really does want to be reinstated in the same job or claim compensation for being unfairly dismissed. Sometimes an employee who was unfairly dismissed does not want to be reinstated or claim compensation. The employee only wants to claim outstanding money for notice, leave and so on.

See Problem 2: Employee wants to claim notice pay and leave pay.

The following is an outline of the procedure you can follow after dismissal of a employee. It should be followed in all cases where an employeeis dismissed and wants to be reinstated or at least compensated.

Encourage Ms Mbambo to exercise her rights, but do not raise her hopes or expectations too much. Never promise that she will be reinstated. Explain that she must prepare herself to go through with the whole process, which can be long and complicated. She will need to be committed to the case and prepared to spend time with you working on it.

You must first see whether there was a fair reason and a fair hearing for the dismissal. To do this you must follow the steps described below.

Determine whether her dismissal may have been unfair

  1. Ask Maisie Mbambo to describe the events leading up to dismissal. You must make a note of all the important dates, particularly the date on which Ms Mbambo heard of the dismissal.

See When is a dismissal fair or unfair?

  1. Ask her what reasons were given for her dismissal, if any. Who dismissed her and when did they dismiss her? What does she think about the reasons they gave for dismissing her?
  2. If she was dismissed for misconduct ask her the following questions to establish the substantive and procedural fairness of the dismissal:

See Dismissal for misconduct.

  1. If she was dismissed for incapacity (poor performance), ask her the following questions:

See Dismissal for incapacity.

  1. Was she given a fair hearing before being dismissed? Ask the following questions:

See Procedural fairness.

If the answer to any of the above questions is 'NO', then the dismissal of Maisie may be unfair and she should be able to challenge it. If she still wants to get her job back, then you can take the next steps.

Challenging the dismissal

Refer the unfair dismissal dispute to the relevant body for conciliation:

See Solving disputes under the LRA.


PROBLEM 5: Retrenchment

A number of employees are retrenched from a large paper factory. They are unhappy about the way they were treated. Many of them have over ten years service with the business.

What does the law say?

The Labour Relations Act says that a retrenched worker must be paid at least 1 week's wages for every full year that the worker worked for the employer. This severance pay is money paid to a worker for losing a job, when the worker is not at fault. If workers were not paid severance pay or were paid too little, they have a clear right which must be enforced.

The Labour Relations Act sets down rules for employers who want to retrench workers. If the employer does not follow these rules, then the employer can be guilty of an unfair dismissal.

The Labour Court will not readily reinstate workers who were retrenched if the employer can show that it was absolutely necessary to retrench those workers. But if the employer did not follow the correct procedures, the Labour Court can order the employer to pay compensation money to the workers.

See Retrenchment or redundancy dismissal, for the reasons and procedures employers must follow before retrenchment.

What can you do?

Find out from the employees if they want their jobs back or to get compensation for losing their jobs, or if they only want to claim severance pay. Consider all the guidelines for retrenchment given above. You may believe that the retrenchment was unfair, or that the procedure the employer used to retrench the employees was not correct.

The matter must first be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation.

See Conciliation by the CCMA or Bargaining Council.

If conciliation is unsuccessful

If the employees want severance pay, then the case must be referred to the CCMA for arbitration.
If employees want compensation or to get their jobs back, then the matter must be referred to the Labour Court for adjudication.

See Arbitration by the CCMA or Bargaining Council.
See Adjudication by the Labour Court.


PROBLEM 6: Employee is dismissed for being drunk on duty with no previous record of drunkenness

Smuts claims that he was dismissed for being drunk on duty. He says this is unfair because he denies being drunk on duty. He says he has no record of misconduct and especially not drinking. He also says he was not given a hearing before being dismissed. He wants you to help him get his job back. When you telephone the manager Peter, he says that he has witnesses who saw Smuts drunk on duty. When you ask him why he did not give Smuts a disciplinary hearing, Peter says that there was no way he could have given Smuts a hearing - he was too drunk at the time. Smuts admits that he had been drinking the night before, but he had not drunk anything on the day that he was dismissed.

What does the law say?

  1. Being drunk on duty is an act of misconduct. So proper disciplinary procedures must be used to work out whether the employee is guilty of being drunk on duty and to discipline the employee.
  2. To determine whether the employee was drunk on duty does not depend on the employer giving the employee a breathalyser test. This only measures the content of the alcohol in the blood. The breathalyser test does not say whether the employee was drunk or under the influence of alcohol. You can only work this out by observing the worker's behaviour.

The employee's behaviour will tell the employer whether the worker was too drunk to carry out his or her job. The employer will have to say how the employee's behaviour showed he was too drunk to carry on working. For example, did the employee smell of alcohol, could the employee walk straight, was the speech slurred, were the eyes bloodshot, how rational or irrational was the employee being, was the employee acting in a strange way, was the employee being aggressive, insolent or loud?

  1. Peter should not have dismissed Smuts without first applying corrective and progressive discipline, with the aim of correcting the problem. He should have first given Smuts a warning. If the problem repeated itself he should have instituted other corrective measures, like counselling.
  2. Peter also did not follow a fair procedure to dismiss Smuts, including giving him fair notice of a disciplinary hearing and holding the hearing.

See Dismissal for misconduct.

What can you do?

This appears to be a clear case of unfair dismissal. Write to the employer demanding that Smuts be reinstated.

See Model letter demand to employer for reinstatement.

If Peter does not respond to the letter and/or continues to refuse to give Smuts his job back, you can refer an unfair dismissal dispute to the relevant body within 30 days of Smuts being dismissed:

See Problem 4: Dismissed employee wants the job back (How to apply for reinstatement or compensation).


PROBLEM 7: Employee is dismissed for being drunk on duty

(The employee is suffering from alcoholism)

Manuel, an employee, is dismissed for being drunk on duty. Bennet, the manager, tells you that this is not the first time that Manuel has been drunk on duty. On at least 3 occasions in the past 3 months they have found him passed out at his desk - too drunk to move. He was given disciplinary warnings on all three occasions. Bennet says this is the 'last straw' and he does not want Manuel back.

What does the law say?

  1. If the employee often gets drunk and cannot do the job, then the employee might be suffering from alcoholism. Alcoholism is a sickness so if an employee is an alcoholic, then being drunk on duty is not misconduct but rather incapacity (in other words, the employee is incapable of doing the job properly).
  2. Alcoholism is recognised as an illness in terms of the Unemployment Insurance Act. This Act provides benefits for alcoholics who are unable to work because of their illness, as long as they agree to undergo treatment.
  3. Before dismissing the employee for incapacity, the employer must counsel the employee and assist him or her with getting medical treatment if necessary.
  4. Only if the employee's condition does not improve or the employee's ability to do the job properly does not improve, should the employer think of dismissing him or her.
  5. The employer must still be able to prove that there was a fair reason and a fair hearing before the employee is dismissed.

See When is a dismissal fair or unfair?

What can you do?

  1. Find out from Manuel whether it is true that he has been given warnings for being drunk on duty.
  2. Find out whether he received any counselling for 'persistent alcoholic tendencies'.
  3. Did Manuel have a hearing before being dismissed?
  4. If there was no counselling and no hearing before Manuel was dismissed and the employer refuses to take Manuel back, then you should declare a dispute with the employer. Follow the normal steps for reinstatement to get Manuel's job back for him.

See Problem 4: Dismissed employee wants the job back (How to apply for reinstatement or compensation).


Problem 8: Contract employees are dismissed before the contract is due to terminate

Joe and five other employees have been employed by a sub-contracting company. The employer (from the company) who hired them told the contracting employees the contract would run for 3 weeks. After two weeks Joe and one other employee are paid for the work they have done and told that the firm no longer needs them for the third week.

What does the law say?

Joe and the other employees entered into a three-week contract and both parties are bound by this contract of employment. Joe and the other employee have been unfairly dismissed. They can challenge the dismissal in terms of the Labour Relations Act (LRA).

See Automatically unfair dismissals.

What can you do?

You can help Joe and his co-employee refer the case to the CCMA or a Bargaining Council for conciliation (mediation).

See What steps can be taken if there is an unfair dismissal?
See Solving disputes under the LRA.


Problem 9: Contract workers are not paid overtime

Shezi is employed by a sub-contracting labour broking company. A labour broker (‘temporary employment service’) is someone who supplies labour to the farmer to assist with the picking or pruning requirements of the farm. The company has hired her services out to a farmer where she works as a picker. After two weeks of working on the farm, Shezi has not been paid for any of the overtime she has worked. When she asks the farmer for her overtime money, he tells her he agreed to pay a flat rate to the sub-contractor and he does not have to pay any overtime. He tells her to go to the sub-contractor. She goes to the sub-contractor who tells her that the overtime has got nothing to do with him – she must get payment from the farmer.

What does the law say?

Shezi is entitled to be paid overtime in terms of the Basic Conditions of Employment Act (BCEA). Shezi is employed by the Labour Broker but the law says if the labour Broker does not comply with the BCEA, Shezi can claim the unpaid monies form either the labour broker or the farmer. She can choose to claim this either from the farmer or from the labour broker. . The farmer must obviously pay this overtime - he can either pay this to Shezi or to the sub-contractor who must pay it to Shezi. If Shezi claims the money from the labour broker  he must pay her and then he can claim the money from the farmer by reporting him to the Department of Labour.

What can you do?

You can write a letter to the farmer and the labour broker  setting out Shezi’s right to overtime pay in terms of the BCEA. If the farmer and the labour broker  refuse to pay then Shezi can report either the labour broker r or the farmer to the Department of Labour. If Shezi makes a claim against the labour broker  then the labour broker  may pay Shezi and make a claim against the farmer..


Problem 10. Casual employee is not paid sick leave

For the past year Gadija has worked every Saturday and Sunday as a casual shelf-packer for Shoprite. She works up to 20 hours on a weekend. She had a bad flu’ over one weekend, informed her manager that she was too ill to work and stayed in bed at home. Even though she provided a doctor’s certificate, Shoprite refused to pay her for the days she was ill.

What does the law say?

Gadija is protected by the Basic Conditions of Employment Act which says that an employee who works more than 24 hours during any month earns one day sick leave for every 26 days worked.

See (BCEA) Sick leave.

What can you do?

Write a letter to the employer setting out the circumstances and stating what the law says about casual employees and sick leave. Refer them to the relevant section in the Basic Conditions of Employment Act. If the employer ignores the letter, refer the matter to the Department of Labour.


Problem 11. Contract employee’s contract has not been renewed

For the past nine month, Thami has been employed on a three-month contract, which has been renewed twice. At the end of the third three-month period, he is told that the company will not be renewing the contract. However the company employs someone else for the next three months to do exactly the same job as Thami.

What does the law say?

By renewing Thami’s contract twice, the company has created a reasonable expectation that the contract will be renewed again unless work for which he was employed, has come to an end. By asking Thami to leave because his contract is up, while replacing him with someone else, this means that Thami has in fact been unfairly dismissed. This is an unfair dismissal which is covered by the Labour Relations Act (LRA). Thami can challenge the dismissal in terms of the LRA.

See Automatically unfair dismissal.

What can you do?

You can help Thami first by writing a letter to the employer stating that he believes he has been unfairly dismissed. If the employer refuses to reinstate him then you can help Thami to apply for reinstatement or compensation through the CCMA or a Bargaining Council.

See Problem 4: Dismissed employee wants the job back.
See What steps can be taken if there is an unfair dismissal?
See Solving disputes under the LRA.


PROBLEM 12: Application for UIF benefits is too late

Iris worked as a cook at the Late Nite Restaurant for 5 years. She paid into the Unemployment Insurance Fund (UIF) for 5 years.

She is dismissed from her work on 5 February. On 30th August she goes to the Department of Labour to apply for unemployment benefits. Six weeks later they tell her that she will get not benefits because her application is too late. She comes to you for help.

What does the law say?

The Unemployment Insurance Act sets down very strict rules about time for applying for benefits. You get 6 months from the time that you stop working to apply for UIF benefits.

See Unemployment benefits.

What can you do?

You must first work out if Iris’s application is late.

First take the date she was dismissed: 5th February. Then take the date she made her application: 30th August. Work out the number of months between these two dates. From 5 February to 30 August = 6 months 25 days.

According to the law, Iris is too late to apply for unemployment benefits. But the commissioner may accept an application after the 6-month period has expired when she can show just cause (very good reasons why she is late)


PROBLEM 13: Employer does not register worker with the Unemployment Insurance Fund

Jack’s employer did not register him as a contributor with the Unemployment Insurance Fund. This means he did not pay any contribution to the Fund.

What does the law say?

The law says all employers must register all employers with the Unemployment Insurance Fund as soon as they start working for them. An employer must also pay 2% of an employee’s wage/salary to the Fund every month (1% is deducted from the employee’s salary, and 1% is paid by the employer).

See How do employees become contributors to UIF?

What can you do?

Jack must go to the Department of Labour and register for unemployment benefits. The Department will discover that Jack’s employer has not registered him as a contributor. They will investigate and take action against the employer. The employer will have to make back-payments to make up the money that should have been paid to the Fund.


PROBLEM 14: Failing to sign the Unemployment register

Jack finally managed to get his application for unemployment benefits accepted. When he received the first cheque he was told to come and sign the unemployment register every 4 weeks. He does this every month but misses one month. He is not paid for the time he did not sign the register. Is he entitled to get benefits for the time he did not sign the register?

What does the law say?

The law says that anyone who has applied for unemployment benefits must sign the register to show that she or he is still unemployed and looking for work.

But if the employee can show that she or he was not able to sign for a good reason, for example because of being ill, and if the employee was unemployed during that period and available for work, then he or she should be paid for the period not signed.

If the employee was not able to sign because of being ill, she or he will have to produce a doctor's letter.

If the employee did not sign because he or she was away looking for work, this might not be accepted as a good enough reason not to sign. The employee will have to re-register for UIF benefits and start all over again.

See Unemployment benefits.

What can you do?

You can write a letter of appeal to the Department of Labour office in your area.

If no money was paid out at all because the person did not sign the register more than once, you can send a letter to the Regional Appeals Committee at the provincial office of the Department of Labour., asking them to investigate why no benefits were paid at all, and to pay out the money owing to the applicant.

See UIF appeals.
See Model letter of appeal against the refusal to pay UIF.
See Resources, for addresses.
See Model letter to UIF because benefits have not been paid.


PROBLEM 15: Long delay in paying Compensation

Zama worked for a delivery firm. On the 25 March 1997, on his way to drop off an order, he was involved in a motor accident. He suffered severe injuries in the accident. When he went back to work after being in hospital for 6 weeks his employer told him that there was no longer any work for him. It is now a year after the accident happened. Zama still has not received any Compensation. His employer has not paid him anything since the date of the accident.

What does the law say?

Zama's accident happened during the 'course and scope of his duties' so he is covered by the Compensation Fund.

See Who can claim compensation from the Fund?

The employer must report the accident to the Compensation Fund on FORM W.C.L.2 as soon as it happens. The doctor must fill in FORM WCL4 after the first visit by the injured employee.

See Steps to claim disability.

An employer has to pay compensation (that he would normally receive from the Commissioner) to the injured employee for the first 3 months from the date of the occupational injury. The Compensation Fund will repay the employer for the money that was paid.

The employer also owes Zama wages, notice pay and any outstanding leave pay. The employer should also have followed certain procedures to dismiss Zama, and have had a good reason to dismiss him.

See (BCEA) Notice.
See Dismissals.

What can you do?

  1. Zama can claim the first 3 months salary from his employer after suffering from the injury (the commissioner will repay this to the employer)
  2. You must find out from the Compensation office whether the accident was reported by the employer. Telephone the Compensation office and ask for the Index officer. Give the name of the employee, the date of the accident and the name of the company. The officer will look it up on the Index and will be able to tell you if the accident was reported or not. If it was reported, ask for the claim number.

Or you can write a letter to the Compensation Commissioner, and include all the information mentioned in Model letter to Compensation Commissioner asking whether the accident was reported.

See Model letter to Compensation Commissioner asking whether the accident was reported.

Always include the claim number if you have it. Also include a completed FORM WCL3 which will save the employee time if the accident has not been reported.

See Compensation Form WCL3 (PDF)

  1. If the employer did not report the accident, the Compensation Commissioner will send a WCL3 form to you. The employee must complete this. The Compensation Commissioner will take action against the employer for not reporting the accident.
  2. If the accident was reported, send a letter to the Compensation Commissioner asking them why there has been such a long delay in paying out the compensation. Check that the Commissioner has all the correct addresses.

See Model letter to Compensation Commissioner asking for reasons for the delay in paying.

The Compensation Commissioner must tell you exactly what is causing the delay. They may ask you to send them a missing form or give them the correct address of the employee.

  1. You can try to get Zama' wages, notice pay and any outstanding leave pay from the employer. If this is not successful, you can lodge a complaint with the Department of Labour.

See Problem 2: Employee wants to claim notice pay and leave pay.

  1. Zama may have been unfairly dismissed and he should therefore take action against his employer. However, he has missed the deadline for loding a dispute with the CCMA so he will have to apply for condonation in order to make a late application.

See Problem 4: Dismissed employee wants the job back - how to apply for reinstatement or compensation.
See Solving disputes under the LRA.
See Problem 18: Employee is injured on duty and loses the job.


PROBLEM 16: Employees does not get the correct amount of Compensation money

An employee who was permanently disabled received a lump sum cheque from the Compensation Commissioner, but does not feel that she was paid the correct amount of compensation money.

What does the law say?

For all types of disability (temporary and permanent) there are certain ways of working out whether the compensation money has been correctly calculated. For permanent disabilities, a list of percentage disabilities says how much compensation will be paid for each form of disability. It is up to the Compensation Commissioner to decide what percentage disability the employee has, based on the medical reports from the doctor who treats the employee.

See What types of Compensation payment are made?

See the following website for more information on how to calculate how much compensation money should be paid out: www.wcomp.gov.za

What can you do?

  1. Write a letter to the Compensation Commissioner asking them for the details of how they calculated the compensation money. Remember to include the claim number and all the important details about the claim, which you can find in Model Letter to Compensation Commissioner asking for reasons for the delay in paying.

See Model Letter to Compensation Commissioner asking for reasons for the delay in paying.

  1. Read What types of Compensation payment are made? to calculate whether the compensation money was correctly calculated. If it seems that the doctor made a mistake with the percentage disability, the employee has a right to a second opinion from another doctor. This is called a re-assessment of the injury.

See What types of Compensation payment are made?

  1. The employee can get a second opinion from an independent doctor but the employee must pay this doctor.
  2. Send the second opinion to the Compensation Commissioner. They will assess it and decide whether to re-open the case. If the Compensation Commissioner decides that the employee should have got more money, the employee will be refunded.
  3. If the employee wishes to object to a decision of the Commissioner, an objection must be sent within 60 days of the Commissioner's decision. Include the claim number and all the details of the employee's claim as listed in Model Letter to Compensation Commissioner asking for reasons for the delay in paying.


PROBLEM 17: Employee is off work and is not getting paid

Bethuel was injured in an accident at work. He has not been paid for the past six weeks, and the doctor told him to rest for another two weeks. He comes to you with his problem because he says he and his family cannot survive without his weekly wage. Bethuel earns R600 per week.

What does the law say?

Bethuel has to stay completely off work, but he will be able to go back to work later. So he has a total temporary disability. The employer should pay Bethuel for the first 3 months from the date of his injury. This will be repaid to the employer out of the compensation paid to Bethuel.

See How is the compensation money paid?

What can you do?

  1. Write a letter to the Compensation Commissioner asking them about the delays in paying Bethuel his compensation. Or check the website www.labour.gov.za under “compensation fund claims status”.

See Model letter to Compensation Commissioner asking for reasons for the delay in paying.

  1. Advise Bethuel's employer to pay him compensation for the first 3 months. Note that Bethuel gets compensation instead of his wages, not as well as his wages.

Work out how much the Compensation money should be given that Bethuel is paid weekly. The formula for working out compensation is:
Multiply weekly wage by 4.3 : R600 x 4.3 = R2 580 per month
Monthly wage x 75 ÷ 100
R2580 x 75 ÷ 100 = R1935
Bethuel will get paid R1612.50 per month from the Compensation Fund for Total Temporary Disability.

The employer should be paying Bethuel this Compensation amount for the first 3 months (he will get this back from the compensation paid out). The employer already owes Bethuel for the first month. If the employer refuses, report the matter to the Compensation Commissioner.

See Temporary disability.

  1. All doctor's and hospital bills and any medicines that are necessary will be paid by the Commissioner. If the employer has reported the accident properly, doctors and hospitals will send their accounts direct to the Commissioner. If this has not happened, Bethuel must keep all slips and accounts. You can help him claim them back from the Commissioner

PROBLEM 18: Employee is injured on duty and loses the job

While working on a building site two weeks ago, Piet was standing on a ladder which slipped. He fell and broke both arms. This is only a temporary disability, but he cannot do any work until the broken arms have healed, which could be another 6 weeks.

When he telephones his employer, she tells Piet that his job has already been filled. The employer says she cannot wait for Piet to get better. Piet says this is unfair because the accident was not his fault. He comes to you for help.

What does the law say?

The employer can only dismiss Piet for a good reason and by following proper procedures. Piet has a right to be reinstated when he is well again. Piet can also claim Compensation because the accident happened while he was working. The employer should have reported the accident to the Compensation Commissioner.

See Dismissals.
See Compensation Fund.

If Piet stays off work for a long time and is unable to even do lighter work, then the employer can go through the correct dismissal procedures and dismiss Piet for incapacity because he is unable to do his job.

If an employee is permanently disabled as a result of an injury at work, this employee will never be able to perform his or her old duties again. If the employee can do light duties, then you should ask the employer to give the employee light duties. It may be very difficult for a permanently disabled employee to find work anywhere else.

What can you do?

Because the disability is only temporary, you should telephone the employer and ask her to employ the other person in Piet's place on a temporary basis only - until Piet recovers. If the employer dismisses Piet, you can refer the matter to the CCMA as a claim for unfair dismissal.

See Solving disputes under the LRA.


PROBLEM 19: Employee's Compensation has been refused

The Compensation Fund office refused to pay any Compensation to a worker. They gave no reasons for their refusal.

What does the law say?

  1. Certain employers do not have to contribute to the Fund. So their employees are not covered by the Fund.

See Who contributes to the Fund?

A worker for one of these employers will not be protected by the Compensation Act.

  1. The Compensation Fund pays compensation for all accidents which happen 'in the course and scope of duty' but there are circumstances where the Compensation Commissioner will not pay Compensation.

See Who can claim compensation from the Fund?

What can you do?

  1. Check that the employer was contributing to the Compensation Fund and that the employee was injured in her work and that she does not fall into any of the categories falling outside of the scope of the Compensation Fund.
  2. Write a letter to the Compensation Commissioner asking them for their reasons for refusing to pay Compensation.

See Model letter to Compensation Commissioner asking for reasons for the delay in paying.

  1. f the employee wishes to object to a decision of the Commissioner an objection must be sent to the Compensation Commissioner within 60 days of the decision.

See Objections and appeals.

Remember to include all the necessary details of the employee as listed in the Model letter to Compensation Commissioner asking for reasons for the delay in paying.


PROBLEM 20: Workers develop an occupational disease

A number of employees working in an asbestos factory are suffering from similar physical conditions which they believe is a result of working in an environment of asbestos. This is confirmed by the doctor who is attending to them. What help can they receive?

What does the law say?

Employees who suffer from sicknesses as a result of the work they do or the environment they have been working in are covered by the Compensation for Occupational Injuries and Diseases Act (for the non-mining industry) or the Occupational Diseases Mine Employees Act (for the mining industry). These are called occupational diseases. There is sometimes a long period between the exposure at work and the disease which makes it difficult to connect the disease with the work exposure.

What can you do?

Assist the employees with making a claim for compensation from the Compensation Fund.

See Compensation Fund.


MODEL CONTRACT OF EMPLOYMENT

CONTRACT OF EMPLOYMENT

THE COMPANY

(“the Company”)


and


NAME (ID)
(“the Employee”)

It is hereby agreed that the company will employ the Employee as a ………………
(Job grade………………….) in its ……………………………… Department
at a rate of R …………………. per day.

1. DATE OF ENGAGEMENT

The date of commencement of employment is: ……………………………..

2. PROBATION

During the first three months of employment, the employee will serve a probation period. His/her performance and suitability for the position will be assessed during this time. If, during the first month of probation, the Employee’s performance is regarded as being unacceptable despite attempts to counsel the employee, then the employee’s contract may be terminated as per section three (3) below.

3. TERMINATION OF EMPLOYMENT

The company and the employee may terminate this agreement on the following basis:-

3.1.by giving one weeks notice in writing during the first six (6) month period of employment;

3.2. by giving two weeks notice in writing where the employee has been employed for more than six (6) months but not more than one (1) year, and four weeks notice where employment has been longer than 12 months;

3.3. either the company or the employee may summarily terminate this agreement without providing due notice, on any grounds considered appropriate under the law;

3.4. by both agreeing to terminate;

3.5. where an employee is absent for four working days in a row and has not notified the company or given any indication that he or she intends to return, then the contract can be terminated immediately on grounds of desertion.

4. DUTIES

The employee must perform his or her duties as described in the job description as well as any tasks which he/she may reasonably be asked to do.

5. WAGES

The company shall pay the employee the rate indicated in this contract.

Payment shall be made every week in arrears. The company and the employee accept that the wage rate will only be reviewed once a year during OCTOBER and that this review will be based on the performance of both the company and the employee during the previous 12 month period.

6. WORKING HOURS AND FLEXIBILITY

6.1 The employee shall be required to work up to nine (9) hours per day (excluding meal breaks) and shall remain at work between the hours specified by management on any day. Normal working hours shall be from 07h00 until 17h00, Monday to Friday. It is accepted that start and finish times may be altered in line with operational requirements and as determined by the manager from time to time.

6.2 A fifteen (15) minute tea interval shall be granted not later than 10h00 (morning) and 15h00 (afternoon) daily and shall be taken as determined by management in keeping with the operational requirements of the department.

6.3 A lunch break of one (1) hour shall be taken between 12h00 and 13h00 daily. Meal intervals are not regarded as paid working hours.

6.4 The employee accepts that overtime and shift working, including weekend work, are an essential part of employment; the employee agrees to work overtime as may be reasonably required by the company. Where overtime is worked, the employee shall be paid at time and a half of the normal hourly wage.

6.5 Payment for overtime shall only be made where the employee works more than 45 hours in any pay week.

7. LEAVE PAYMENT

The employee shall be entitled to 15 working days leave after 12 months continuous employment calculated at 1,25 days for each completed month of service. An employee absent during the year without permission will have his/her leave calculated on the basis of pro rata leave for the period worked.

It is accepted that annual leave will be scheduled by the employer to meet its manning requirements and will normally be taken during the low season.

8. MEDICAL LEAVE

8.1. Where the employee is unable to work on the grounds of genuine medical incapacity which has not been caused by the employee’s negligence or misconduct, then he/she is entitled to paid sick leave.

8.2. During the first 6 months of employment, the employee is entitled to one day sick leave for every completed 26 days of service. After the first six months of employment the employee is entitled to 30 days sick leave in any 36 month cycle.

8.3. The employee must hand in a medical certificate for any period of absence that is longer than 2 days. On the days when the employee is absent, he or she must notify he immediate supervisor by 09H00 regarding the reason for absence and how long the employee believes he or she will be absent.

8.4. The employee accepts that the company is dependent on the employee regularly attending work and if he or she is constantly absent because of illness then this will make the employee unsuitable for employment in the department and could result in the termination of his/her services on the grounds of incapacity.

8.5. The employee accepts that if necessary he/she will go for a medical test by a doctor appointed and paid for by the company. The results of the examination will be disclosed confidentiality to the company’s medical officer.

8.6. The employee undertakes to bring to management’s attention any disease, ailment or disability which he/she becomes aware of which could in any way impact on the health and safety of fellow workers, the provisions of the Health and Safety Act or his/her ability to properly perform the job.

9. FAMILY RESPONSIBILITY LEAVE

The employee shall be entitled to three days paid leave during every 12 months of service which may be used:-

9.1. when the employee’s child is born;
9.2. when the employee’s child is sick;
9.3. when one of the following persons die: spouse or life partner, parents, adoptive parents, grand parents, children, adopted children, grand children or siblings.

It is the responsibility of the employee to bring proof of the reason for leave. If no proof is given, then the leave taken will be unpaid and will be regarded as unauthorised leave which may result in disciplinary action.

10. UIF

The company and the employee will both contribute according to the provisions of the Act once the employee has provided a valid ID document to the employer.

11. COMPANY RULES AND REGULATIONS

The employee undertakes to read and follow the following policies and procedures as amended from time to time.

11.1. Company Disciplinary Code of Behaviour and the Disciplinary Procedure;
11.2. Company Grievance and Dispute Procedure;
11.3. Company regulations regarding Leave and Absence Procedures;
11.4. Company rules relating to Protective Clothing;
13.5. The Health and Safety regulations of the company.

12. DEDUCTIONS

The employee accepts that any outstanding loans owing to the company or taken from the company will be deducted from the employee’s earnings or any leave entitlement or bonus accruing to the employee.

The employee also agrees that the company may make deductions of up to 25% (one quarter) of the employee’ wages in terms of section 34 of the Basic Conditions of Employment Act to repay the company for the loss or damage caused by the employee’s actions, provided this has been established during a disciplinary hearing.

13. ACKNOWLEDGEMENT

The employee acknowledges his/her appointment and that he/she fully understands the terms of such contract which have been explained to him/her and fully translated.

(Employee Signature)
_______________________________________
Signed on (date)
_____________________________________
(Company Representative)
_______________________________________
Signed on (date)
_____________________________________
(Witness/Translator where appropriate
_______________________________________
Signed on (date)
_____________________________________

ANNEXURE A – Job Description

1. Name


____________________________________________________________________________________________________________

Physical Address
_____________________________________________________________________________________________________________

________________________________________
________________________________________
_____________________________________________________________________________________________________________
2. Company
_____________________________________________________________________________________________
________________
_____________________________________________________________________________________________________________
3. Position
_____________________________________________________________________________________________
________________

4. Key performance areas (the key elements of the employee’s job that he or she will be measured against)
_____________________________________________________________________________________________________________

________________________________________
________________________________________
________________________________________
_____________________________________________________________________________________________________________

5. Commencement Date
_____________________________________________________________________________________________________________

6. Total cost to the Company
_____________________________________________________________________________________________________________

COMPLIANCE WITH SECTION 29 OF THE BCEA

WRITTEN PARTICULARS OF EMPLOYMENT

YES / NO

Full name and address of employer

YES

Name and occupation of employee

YES

Brief description of the work

YES

Place of work

YES

Date on which employment began

YES

Ordinary hours of work and days of work

YES

Employee’s salary

YES

The rate of pay for overtime work

As provided in BCEA

Other cash payments

N/A

Any payment in kind

YES

Frequency of remuneration

YES

Deductions to be made

YES

Leave to which employee is entitled

YES

Period of notice required to terminate

YES

Description of any council or sectoral determination

N/A

Any period of employment with a previous employer

N/A

Any other documents that form part of the contract

YES

Where such documents are reasonably accessible

YES


Model letter

Model letter of demand to employer for reinstatement

A dispute must be referred to the Commission for Conciliation, Mediation and Arbitration within 30 days of the dismissal, so get the letter requesting reinstatement to the employer immediately.

11 January 211
REGISTERED

The Manager
Mario's Upholstering
131 Main Street
Upington

Dear Sir

RE: MR ANDRE PIETERSON - TERMINATION OF SERVICES

On Monday 5th January 2011 we spoke on the telephone regarding the dismissal of Mr Pieterson by yourself on the 4th January 2011. I have now discussed the matter further with Mr Pietersen and he has asked us to write to you as follows.

Mr Pieterson advises us that he was taken by surprise by the termination of his services. In our telephone conversation about Mr Pieterson you told me that he had not been dismissed. You said there was a need to reduce staff so Mr Pieterson had been retrenched by the company. If this is the case then it appears that you have not complied with all the guidelines and standards regarding retrenchment as laid down by the Labour Relations Act.

You have not complied with the requirements for retrenchment in the following ways:

a. by not giving Mr Pieterson reasonable notice of the need for the proposed retrenchment before the decision to retrench was taken;
b. by not consulting with the employees or their representatives on the proposed need to retrench employees;
c. by not taking all reasonable steps to avoid the retrenchment;
d. by not applying fair and reasonable criteria in selecting staff to retrench;
e. by not giving Mr Pieterson reasonable notice of your intention to retrench, so as to enable him to make alternative plans for employment.

If the dismissal of Mr Pieterson occurred for reasons other than reduction of staff, we should like to draw the following points to your attention. At no time during the course of Mr Pieterson's employment with your company was dissatisfaction expressed concerning his work or conduct in the workplace. In addition, Mr Pieterson was given no warning of your intention to dismiss him and he was not given the opportunity to state his own case or defend himself in a hearing.

In the light of the above, Mr Pieterson submits that there was no sound, substantive reason for his dismissal and the procedures used to dismiss him were unfair. Your actions in dismissing him therefore constitute an unfair dismissal in terms of the Labour Relations Act. In the circumstances, your dismissal of Mr Pieterson is of no legal effect and he still regards himself as being in your employ. Mr Pieterson hereby tenders his services to you.

We therefore request, on behalf of Mr Pieterson, that you reinstate him in his previous job on the same terms and conditions as applied prior to his dismissal. Should you fail to confirm this in writing within seven days from the date of receipt of this letter, an application will be made to the Commission for Conciliation, Mediation and Arbitration for conciliation, without further notice to you.

However we hope the above action will not be necessary and we look forward to hearing from you before this time.

Yours faithfully

__________________
(Advisor)

Model letter of demand to employer for notice and leave pay

NOTE: This letter can be used as a model for any demand against an employer, for example, a claim for the right wages to be paid, and so on

10 January 2011

The Manager
Sew 'n Knit
15 Bell Arcade
Greytown

Dear Sir/Madam

RE: JAMES TYEKELO

We have been approached by Mr Tyekelo who was dismissed from his employment with you on 4 January 2011. At the time of his dismissal he was earning R500 per week.

Mr Tyekelo left your employment without being being paid in lieu of notice and he was not paid out the pro-rata leave owing to him. He took leave last year in March 2010. He therefore wishes to claim the outstanding money which is calculated as follows:

one week's salary in lieu of notice: R500

pro-rata leave pay (for 9 completed months service) R500 x 3 weeks leave per annum as per contract = R1 500

R1 500 (divided by) 12 months x 9 months worked =

R1 125

Kindly forward the total amount of R1 625 being outstanding notice and leave pay to our office within 14 days of receipt of this letter failing which we shall refer the matter to the Department of Labour (or Bargaining Council if the employee is covered by a Bargaining Council Agreement) for investigation.

Yours faithfully

_____________________
(Advisor)



Model letter to Department of Labour about a notice and leave pay claim

NOTE: This letter can be used as a model for the referral of any complaint for investigation to the Department of Labour or to a Bargaining Council.

29 January 2011

The Labour Inspector
Department of Labour
Durban

Dear Sir/Madam

RE: JAMES TYEKELO / SEW 'N KNIT

We have been approached by Mr Tyekelo who was dismissed from his employment with Sew 'n Knit of 15 Bell Arcade, Greytown on 5 January 2009. He started working for Sew 'n Knit on 20 February 2006 and was paid a salary of R500 per week at the time of his dismissal.

According to Mr Tyekelo he was dismissed because he was late for duty on 28 December 2010. He advises us that the reason he was late was because of a taxi boycott in the area where he lives and he had to wait for a bus to arrive to take him to work. It is clear that such circumstances are beyond the control of Mr Tyekelo who has no history of lateness.

Mr Tyekelo was dismissed without being given notice or paid in lieu of notice and he was not paid out the pro-rata leave owing owing to him. He last took leave in March 2010. We do not believe that the circumstances justified summarily dismissing Mr Tyekelo.

He wishes to claim the outstanding money which is calculated as follows:

one week's salary in lieu of notice:

pro-rata leave pay (for 9 completed months service) R500 x 3 weeks leave per annum as per contract = R1 500

R1 500 (divided by) 12 months x 9 months worked =

R 500

R1 125

Please investigate Mr Tyekelo's claim and advise us of the outcome of your investigations.

Yours faithfully

____________________
(Advisor)

 


Model letter to UIF because benefits have not been paid

NOTE: This letter can be used as a model for any complaint about benefits not being paid, including illness benefits, maternity benefits, and so on

3 July 2011

The Claims Officer
Department of Labour
Cape Town

Dear Sir / Madam

RE: MR JACK NAUDÉ - ID NO: 510707 0098 006

Mr Naudé registered for unemployment benefits on 16 April 2011.

He stopped signing the register on 15 May 2011 as he was away in the Eastern Cape looking for alternative employment. We enclose for your reference two letters of refusal of employment. A month later he signed the register again. During the period he was not signing, he was still unemployed and available for work.

He has been paid unemployment benefits for the period that he signed. However no payments have been made to him for the period that he did not sign the register.

Kindly investigate the reasons why he has not been paid any further benefits. Please advise us what action Mr Naudé could take to be paid out his full benefits.

Yours faithfully

_______________________
(Advisor)



Model letter of appeal against the refusal to pay UIF

Letter of appeal against the refusal to pay UIF

NOTE: Send this notice of appeal to the Regional Appeals Committee at the provincial  office of the Department of Labour with a covering letter from the worker or advice office worker.

UIF APPEAL
1. The appellant:TAFENI JONGUMZI
2. Appellant's address:c/o Claremont Advice Office
PO Box 51
Claremont
Durban
4051
3. Identity number:3602125134189
4. Name and address of employer:Claremont Municipality
PO Box 17
Claremont
4051
5. Date of application for benefits: 31/08/2011
6. Address where application made:Cape Town Department of Labour
7. Date when I heard of Claims Officer's decision: 18/10/2011
8. Claims Officer's decision:Benefits refused because I was not in employment for 13 weeks in the last year, and not unemployed due to illness for more than 2 weeks.
9. Reasons for appeal: I was employed at the Municipality from 11/01/98 until 30/05/2011

Application for benefits was made on 31/08/2011. Therefore I was in employment for more than 13 weeks in the year before applying for benefits. I was also already unemployed for more than two weeks due to illness when I applied for benefits. I am therefore entitled to UIF benefits.

____________________
TAFENI JONGUMZI


Model letter to Compensation Commissioner asking whether the accident was reported

25 March 2011

The Compensation Commissioner
PO Box 955
PRETORIA
0001

Dear Sir/Madam

ENQUIRY RE ACCIDENT REPORT

NAME OF WORKER:NTSHAKALA NGESI
IDENTITY NUMBER:400713 5086 084
DATE OF INJURY: 14 JANUARY 2011
EMPLOYER:GRANSTEEL CONSTRUCTION (PTY) LTD
61 MINES ROAD
RANDBURG

Mr Ngesi has approached us for assistance with his claim for Compensation.

Mr Ngesi was off duty from 14 January to 30 January 2011 as a result of an injury sustained on duty and has not yet received compensation for this period.

Kindly advise us whether Mr Ngesi's accident was reported in terms of the Compensation Act. If it was reported, please give us the claim number. We enclose a completed FORM WCL3 in case this is needed. I look forward to hearing from you.

Yours faithfully

_____________________
(Advisor)


Letter to Compensation Commissioner asking for reasons for the delay in paying

25 March 2011

The Compensation Commissioner
PO Box 955
Pretoria
0001

Dear Sir / Madam

RE: DELAY IN PAYING COMPENSATION

NAME OF EMPLOYEE:MARY PIETERSE
IDENTITY NUMBER:751108 0098 004
DATE OF ACCIDENT: 13 DECEMBER 2010
CLAIM NUMBER:98/836172

The abovementioned accident was reported to the Compensation Commissioner in January 2011. To date Ms Pieterse has not received any compensation for the time that she was off work.

Kindly advise us of the reasons for the delay and when she can expect to receive compensation.

Yours faithfully

______________________
(Advisor)


How to write a complaint to the Pension Funds Adjudicator

This is an example produced by the Pension Funds Adjudicator to show you how to write your complaint to the Pension Funds Adjudicator, which includes all the information they need.

You can copy the way the complaint is written. But change everything that is underlined to put your own case details in instead. If there is something in the example which does not apply to your case, leave it out.

The person whose case you are dealing with is the complainant. The pension fund or the employer are the respondents. So the complaint is against the respondents.

Send a copy of the complaint to the respondents at the same time that you send it to the Pension Funds Adjudicator, so that the respondents have the same documents as the Pension Funds Adjudicator does.

In the complaint between:

Henrietta SmithComplainant
and
Cape Friendly Pension FundFirst respondent
Metal Shoes (Pty) Ltd
[the employer - only if necessary]
Second respondent

COMPLAINT IN TERMS OF SECTION 30A OF THE PENSION FUNDS ACT 24 OF 1956

  1. I am the complainant. My name is Henrietta Smith. I am an adult female, of 16 Wally Street, Kenilworth, Cape Town, and my telephone number is (011) 761 3296.
  2. The first respondent is the Cape Friendly Pension Fund, whose address is PO Box 2462, Observatory, Cape Town. The Principal Officer of the pension fund is Mr James Beckett. The telephone and fax numbers of the pension fund are ...
  3. The second respondent is Metal Shoes (Pty) Ltd, a company with its head office at 420 Voortrekker Road, Maitland, Cape Town. The telephone and fax numbers of the second respondent are ...
  4. I have sent a written complaint to the pension fund / employer in terms of Section 30A(1) of the Act on 22 February 2011 I enclose a copy of that complaint marked 'A'.
  5. The first respondent wrote back on 25 February 2011 to say they would look into the matter. I enclose a copy of their reply marked 'B'. I received no further information nor reply from the first respondent.

As the respondent has not replied to the complaint within 30 days, the Pension Funds Adjudicator now has jurisdiction to deal with this matter.

PARTICULARS OF THE COMPLAINT

Under this heading you should explain what the complaint is about.

The background

First give the history of your work with that employer and membership of the pension fund. Write down all the background. For example:

  1. I started work for the second respondent on 4 January 1964 as a messenger. I retired on 30 September 2011.
  2. All the time I worked for the second respondent, I was a member of the first respondent, a defined benefit fund. I made regular contributions for my pension.

Or you might say:

I purchased an annuity with the Golden Retirement Annuity Fund, administered by Ace Insurance Company, on 17 July 1969, and I contributed R150 monthly to this. At the date of retirement, I decided to get a 1/3 cash lump sum. I took the rest of my retirement benefit as a monthly pension.

Explain the problem

The law says you can complain about:

You must tell the Pension Funds Adjudicator if you think:

Write what happened and also why you think the pension fund did something it was not supposed to do, or why you think the pension fund caused you to lose money, or what you disagree with the pension fund about, or why you think the employer did not carry out its duties.

These are some examples of things you may want to complain about. Maybe you think that:

Give as many details as possible about the case, and tell the Pension Funds Adjudicator exactly what happened from beginning to end. Remember the Pension Funds Adjudicator has never heard of your case before, and they know absolutely nothing about you or this complaint.

Examples

It doesn't help to write: "I phoned Ace Insurance and they told me they had decided I did not qualify." This does not help because it does not say who you spoke to at Ace, when you phoned Ace, who at Ace had decided and it does not really explain what was decided.

It would be better to say it like this: "On Wednesday 4 February 2011 I phoned Ms Carelse, the Fund Manager at Ace Insurance. She told me that the board of trustees had met on 30 January 2011. They decided to refuse my application for early retirement made in terms of Rule 9.2 of the rules of the fund, because I did not qualify."

It doesn't help to write: "In terms of the rules I am entitled to a gratuity of R100 000." This does not say which rule, nor how you arrived at the figure you claim your client is entitled to.

It would be better to say: "Rule 6.2 provides that on retrenchment an employee is entitled to her own contributions plus 20% of the employer's contribution plus 10% per annum interest. My own contributions totalled R..., and 20% of the employer's total contribution amounts to R... . So with interest I am entitled to R100 000. Instead on 6 February 20.... I received a cheque for only R86 000 from the fund. A copy of the fund's statement is attached, marked 'C'."

When you have given the facts, you must set out your argument about why you think the fund was wrong. Say why you think you are right.

Relief

Don't forget to say what you think would help or solve the problem. This is called relief. Write down what you want the Pension Funds Adjudicator to do. The law says the Adjudicator can make any order about this complaint which a court can make. So for example you could ask the Adjudicator to order the pension fund or employer to:

or ask the Adjudicator for:

End the complaint

Signed at Cape Town on this [date] day of [month] [year].

Complainant:_______________________________________
Address:_______________________________________
_______________________________________
_______________________________________
_______________________________________
Tel. no.:_______________________________________
Fax no.:_______________________________________

With your complaint include:

Remember to send a copy of the complaint to the respondents, so that they have the same documents as the Pension Funds Adjudicator does.

LRA Form 7.11 (PDF)

Compensation Form WCL3 (PDF)


Checklists

Checklist for a labour problem

  1. Full name and address of the worker and if possible a telephone number.
  2. Full name, address and telephone number of the employer.
  3. Was there any written employment contract?
  4. The employee's wage at the time of the complaint.
  5. How long has the employee been working there?
  6. What work was the employee doing?
  7. What are the details of the employee's complaint?
  8. If the problem relates to a dismissal:
  1. Does the employee know whether the employer's company was a member of an Bargaining Council?
  2. Is the employee a member of a union? If so, get the union's name, address and telephone number.


Checklist to prepare for arbitration

Here is a checklist to help paralegals to prepare employee's for an arbitration:

  1. Have the employee understand what is meant by arbitration and what it entails?
  2. Have the employee and the employer agreed on the issue which the arbitrator will be asked to decide?
  3. Have the employee made copies of all necessary documents for the arbitrator to use at the hearing?
  4. Will employee's need the services of an interpreter?
    If so, have they made the necessary arrangements to get someone?
  5. Has theemployee made arrangements for all their witnesses to be present at the hearing?
    Oral evidence from witnesses is often the best way of proving a case.

Checklist to prepare for arbitration on reinstatement

  1. Full name and address of the employee and if possible a telephone number.
  2. Full name and address of the employer.
  3. The employee's length of service.
  4. Employee's wage at the time of the dismissal.
  5. Was there any written employment contract?
  6. Was there any established disciplinary code/procedure?
  7. What was the nature of the employee's job and of the employer's business in general?
  8. Did the employee receive notice in writing?
  9. Get details of the employee's marriage, family situation, dependants, (ages of children, whether studying, working or unemployed).
  10. Is the employee a member of a union? If so, get the union's name, address and telephone number.
  11. Does the employee know whether the employer's company was a member of a Bargaining Council?
  12. What are the employee's prospects of finding another job?
  13. Does the employee have any other information or documents that might be relevant to the case?

Checklist for problems about UIF

  1. Name, address and identity number of employee.
  2. Was the employee a contributor to the UIF?
  3. Is the employee out of work , or without work because of being pregnant or illness or has the employee died and the dependants are claiming UIF death benefits?
  4. Was the employee registered by the employer with the Fund?
  5. Is the employee permanently resident in South Africa?
  6. Have less than 9 months passed since the employee last worked?
  7. Has the employee registered for benefits?
  8. Was the employee told that the benefits are used up? Is the employee still unemployed or sick?
  9. Have less than 6 months passed since the employee last worked?

Checklist for Compensation problems

  1. What is the name of the employee?
  2. What is the address of the employee: at work and at home?
  3. What is the age of employee?
  4. What is the name of the employee's employer at the time of the accident?
  5. What is the address of the employer?
  6. What work was the employee doing at the time of the accident?
  7. What was the date of the accident?
  8. Has employee received any correspondence (letters or forms) from the compensation office?
  9. Give details of the accident.
  10. What is the name of the employee's doctor?
  11. What injuries did the employee suffer in the accident?
  12. How long was the employee off work as a result of the accident?
  13. Is the injury permanent or temporary?
  14. Can the employee still do some work or not, for example, light duties?
  15. Is the employee still having medical treatment or is the medical treatment finished?


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