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Chapter 6 - Labour Law

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 Smith Complainant
and
Cape Friendly Pension Fund First 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:

  • how the pension fund is run
  • how the money is invested
  • the rules of the pension fund

You must tell the Pension Funds Adjudicator if you think:

  • the pension fund did something it was not allowed to do
  • you lost money because of something the pension fund did
  • you disagree with the pension fund about something that happened or about the rules
  • the employer did not carry out its pension fund duties

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:

  • the monthly pension was not calculated correctly
  • you did not get an increase in the pension that you were supposed to get
  • the pension fund left out some things when they worked out your benefits
  • the employer took off money from the pension for a staff loan you had
  • the pension fund discriminated against you: this means that they were not fair because they gave benefits to others that you did not get
  • when the pension fund closed down or changed to a defined contribution pension fund it used the surplus unfairly
  • you did not get a fair amount of money when you left the pension fund
  • the board of the pension fund did not keep to its promises
  • the pension fund used the rules in a way you disagree with
  • the pension fund was unfair in deciding about early retirement or disability
  • the pension fund gave death benefits unfairly
  • the pension fund did not give you proper information so you made a bad decision

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:

  • give you urgent or interim relief
  • give you information which you need
  • pay your contributions for a time
  • pay a certain pension amount
  • give some of the surplus to the provident fund
  • give you compensation money if the fund was wrong
  • change a decision of the fund trustees if it was not fair
  • pay costs
  • obey any law

or ask the Adjudicator for:

  • an order that says what your rights are if they are not clear
  • an interdict to stop the fund from doing something

End the complaint

Signed at Cape Town on this [date] day of [month] [year].

Complainant: _______________________________________
Address: _______________________________________
_______________________________________
_______________________________________
_______________________________________
Tel. no.: _______________________________________
Fax no.: _______________________________________

With your complaint include:

  • copies of the letter to the pension fund/employer and their reply
  • proof that the complaint was first sent to the pension fund, for example, a registered letter slip or fax slip
  • any other papers, including letters, about the complaint
  • the rules of the pension fund, if available

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)

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