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Chapter 6 - Labour Law

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?

2. 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.
3. 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.

4. 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?

3. 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.

3. 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, page 255

4. 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?

2. 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:
   

• Telephone or write to the employer and ask for details on why Thabiso is being underpaid, as the law says that a minimum wage must be paid to her.

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

• If the employer carries on paying below the minimum wage and refuses to take any notice of your request, you should refer the problem in writing to the Bargaining Council (if it is an Bargaining Council Agreement) or to the Department of Labour (if it is a Wage Determination). The letter must say exactly what the claim is and what steps have already been taken to sort out the problem.
  
• Each Bargaining Council as well as the Department of Labour has its own procedures for investigating complaints and enforcing rights. The Department of Labour will appoint an inspector to investigate the complaint. If the inspector finds the employer has not complied with the BCEA, the inspector can order the employer to pay Thabiso by giving the employer a Compliance Order. If the employer refuses to pay Thabiso, 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.

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

3. 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). 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.

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:
   • Did she know the consequences of being late?
   • Do all people who are late get treated in the same way?
   • What previous warnings of misconduct has she had? When were they given? Were they verbal or written? What were they for? Who handed out the warning(s)?

See Dismissal for misconduct.

1. If she was dismissed for incapacity (poor performance), ask her the following questions:
   • When she was late what impact did this have on her performance at work?
     
   • Was she warned that her lateness at work was unacceptable?
     
   • Was she given the chance to improve her performance?
     
   • Was she offered any alternative options, for example, starting work later and working in her lunch break?

See Dismissal for incapacity.

1. Was she given a fair hearing before being dismissed? Ask the following questions:
   
   • Was she given proper notice of the hearing before being dismissed?
     
   • Was she told what the charges were against her?
     
   • Did she get a chance to prepare for the hearing?

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:

• Bargaining Council if she is covered by a Bargaining Council Agreement
  
• If she is covered by a collective agreement, she must follow the dispute resolution procedure in the agreement
• otherwise refer the matter to the CCMA
  

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?

3. 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.
   
4. 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:

• The Bargaining Council if Smuts is covered by a Bargaining Council Agreement
  
• if he is covered by a collective agreement, he must follow the dipute resolution procedure in the agreement
  
• otherwise refer the matter to the CCMA

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 company. 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). She can choose to claim this either from the farmer or from the sub-contractor. 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 sub-contractor he must pay her and then 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 sub-contractor setting out Shezi’s right to overtime pay in terms of the BCEA. If the farmer and the sub-contractor refuse to pay then Shezi can report either the sub-contractor or the farmer to the Department of Labour. If Shezi makes a claim against the sub-contractor then the sub-contractor can report the case to the Department of Labour.

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 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. 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 9 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. There is nothing you can do to help her. It does not matter what the excuses are, for example, that she did go to the office but she was first told to go and look for work. It will not help to appeal against the decision of the Unemployment Insurance Board.

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

Jack’s employer did not register him as a contributer 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 Labour head office in your area, 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)

3. 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.
   
4. 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.

5. You can try to get Zama' wages, notice pay and any outstanding leave pay from the employer.
   

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

6. 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 19: 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.

2. 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?

3. The employee can get a second opinion from an independent doctor but the employee must pay this doctor.
4. 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.
5. 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.

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

2. 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.

3. 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.

2. 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.

3. 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 a work sickness

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.