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Chapter 8 - Labour Law

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

Mr Ernest Johannes 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 Mr Johannes's wages. From the pay slips that he brings to you, it seems that every week deductions are made for shortages.

What are his rights?

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

See Deductions

What can you do?

Before you take any steps, you should contact the union that is organising in the industry. Explain to them what the problem is. If the worker is a member of the union then they will probably want to handle the problem themselves. If they do agree to take on the case, then you must keep in contact with the union to find out whether the problem has been solved.

If the union does not want to deal with the problem, then you can take the following steps:

  1. Find out whether Mr Johannes is covered by a Bargaining Council Agreement or Wage Determination, or other agreement about terms and conditions of employment.

See How do you know which law applies to a worker?

Mr Johannes is covered by the Bargaining Council Agreement for the motor industry. This agreement says that any deductions from wages are unlawful.

  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 worker is claiming.

See Model letter 1 Letter of demand to employer for notice and leave pay

  1. If the employer will not pay back the amounts owing to Mr Johannes, write another letter to the employer saying that you are now referring the problem to the Bargaining Council.
  2. 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 2 Letter to Department of Labour about a notice and leave pay claim


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

Mr Ngome 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 are his rights?

  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.
  3. If Mr Ngome was unfairly dismissed, he may be able to claim compensation from the employer.

See Unfair dismissals
See PROBLEM 4: Dismissed worker 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. Work out if Mr Ngome is covered by a Bargaining Council Agreement or Wage/sectoral Determination or the Basic Conditions of Employment Act, or other terms of employment.

See How do you know which law applies to a worker?

  1. Work out according to the relevant wage regulating measure exactly what amounts are owing by the employer to Mr Ngome for pay in lieu of notice and outstanding leave pay.

See Summary of BCEA conditions of employment if he falls under the Basic Conditions of Employment Act

  1. You can telephone the employer, giving your name, where you are telephoning from (which organisation), and on whose behalf you are telephoning (the full name of the worker).

See PARALEGALS AND ADVICE OFFICES, Telephone calls

You can also write a letter to the employer. This is a good way of having a record of what you said.

See Model letter 1 Letter of demand to employer for notice and leave pay

  1. If you get no reply from the employer, or the employer refuses to pay Mr Ngome the money that is owing, the next step is to get Mr Ngome's rights enforced. Identify the relevant body, depending on what wage regulating measure Mr Ngome falls under.

See Enforcement of the BCEA
See Enforcement of a workplace-based collective agreement
See Enforcement of a Bargaining Council Agreement
See Enforcement of a sectoral determination

You can refer the worker with a letter to the relevant body. Or the advice office itself can write a detailed letter about the problem and post it to the relevant department.

See Model letter 2 Letter to Department of Labour about a notice and leave pay claim

The letter must say exactly what the claim is and what steps the advice office has already taken to sort out the problem.

  1. Each Bargaining Council as well as the Department of Labour has its own procedures for investigating complaints and enforcing rights. The advantage of the Bargaining Council is that they usually have to sort the problem out within a certain number of weeks.

The Department of Labour will appoint an inspector to investigate the complaint. Often these investigations take many months to complete. It is worthwhile to keep writing to them to ask how the case is going.

If the inspector finds the employer has not complied with the BCEA, the inspector can order the employer to pay Mr Ngome by giving the employer a ‘compliance order’. If the employer refuses to pay Mr Ngome, the inspector can refer the matter to the Director General of Labour.

  1. Mr Ngome 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 Enforcement of the BCEA
See COURT CASES, Civil claims
See COURT CASES, Small Claims Court


PROBLEM 3: Worker is paid below the minimum wage

Miss Fulani 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 are her rights?

  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 Miss Fulani.
  2. Miss Fulani has the right to claim the wages that she was promised when she started working for the company.

What can you do?

  1. Check whether the company is covered by an agreement or determination which sets down a minimum wage for the work Miss Fulani does. If so, find out what the minimum wage is for that industry.

See How do you know which law applies to a worker?

        If Miss Fulani is being underpaid according to the agreement or determination, you can take these steps:

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

See Model letter 1 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, then you should refer the problem to the Bargaining Council (if it is an Bargaining Council Agreement) or to the Department of Labour (if it is a Wage Determination).

See Enforcement of a workplace-based collective agreement
See Enforcement of a Bargaining Council Agreement
See Enforcement of a sectoral determination

You can refer the worker with a letter to the relevant body. Or the advice office itself can write a detailed letter about the problem and post it to the relevant body.

See Model letter 2 Letter to Department of Labour about a notice and leave pay claim

The letter must say exactly what the claim is and what steps the advice office has already 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 advantage of the Bargaining Council is that they usually have to sort the problem out within a certain number of weeks.

The Department of Labour will appoint an inspector to investigate the complaint. Often these investigations take many months to complete. It is worthwhile to keep writing to them to ask how the case is going.

If the inspector finds the employer has not complied with the BCEA, the inspector can order the employer to pay Miss Fulani by giving the employer a Compliance Order. If the employer refuses to pay Miss Fulani, the inspector can refer the matter to the Director General of Labour.

  • Miss Fulani 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 COURT CASES, Small Claims Courts
See COURT CASES, Civil claims

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


PROBLEM 4: Dismissed worker wants the job back

(How to apply for reinstatement or compensation)

Maisie Mbambo is dismissed from her job. She wants to get her job back. She comes to you at the advice office for help with her problem.

What are her rights?

Check whether she was dismissed or whether she was actually retrenched. This might not be immediately obvious. For example, ask her whether she was dismissed alone or with others. If she was retrenched it may be very difficult to get her reinstated. She may be able to get compensation if the employer didn't follow proper retrenchment procedures. She may be able to get severance pay.

See PROBLEM 5: Retrenchment

If she 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 1. Substantive fairness
See 2. Procedural unfairness

It sometimes also happens that a worker resigned from a job. But the worker says that he or she was forced to resign because the employer made it impossible to stay. This is called 'constructive dismissal'. This is also a form of unfair dismissal.

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 a worker who was unfairly dismissed does not want to be reinstated or claim compensation. The worker only wants to claim outstanding money for notice, leave and so on.

See PROBLEM 2: Worker wants to claim notice pay and leave pay

The following is an outline of the procedure you can follow after dismissal of a worker. It should be followed in all cases where a worker is 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

See When is a dismissal fair?
See Is a dismissal 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.
  2. 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?
  3. Was she dismissed for misconduct or was she actually retrenched? This might not be immediately obvious. Ask her whether she was dismissed alone or with others.

See PROBLEM 5: Retrenchment

  1. If she was dismissed for misconduct, ask her the following questions:
  • Did she break a rule that most people knew about?
  • Did she know the consequencs of breaking the rule?
  • Do people who break this rule usually get treated in the same way?
  • If she did break a rule, was she not justified in breaking it, for example, for safety reasons?
  • 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)?

Was Ms Mbambo given a hearing before being dismissed? Did she get a chance to respond to the charges against her? Go through the aspects of a fair procedure.

See Dismissal for misconduct, which sets out what a fair procedure is

  1. If she was dismissed for unacceptable performance, ask her the following questions:
  • Was she aware of what the standards of performance for her job were?
  • Was she warned that her performance was unacceptable?
  • Was she given the chance to improve her performance?
  • Was she offered any training to help improve her performance?
  • Was Ms Mbambo given a chance to tell her side of the story before being dismissed?

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

Challenging the dismissal

  1. If Ms Mbambo is a member of a union, refer the matter to the union. Otherwise you can refer an unfair dismissal dispute to the the relevant body:
  • Bargaining Council if she is covered by a Bargaining Council Agreement
  • if she is covered by a collective agreement, she must follow the dipute resolution procedure in the agreement
  • otherwise refer the matter to the CCMA

See Solving disputes under the LRA, which sets out the steps in detail


PROBLEM 5: Retrenchment

A number of workers are retrenched from a large sawmill. They are unhappy about the way they were treated. Many of them have over ten years service with the sawmill. Recently the union signed up a majority of the workers in the sawmill and management is very unhappy about this.

What are their rights?

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 workers 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 workers 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

See Unsuccessful conciliation

If the workers want severance pay, then the case must be referred to the CCMA for arbitration.

See Arbitration by the CCMA or Bargaining Council

If workers want compensation or to get their jobs back, then the matter must be referred to the Labour Court for adjudication.

See Adjudication by the Labour Court


PROBLEM 6: Worker is dismissed for being drunk on duty

(There is no previous record of drunkeness)

Mr Mankayi claims that he was unfairly dismissed. He says he was not given a hearing. He was just told to 'get the hell out'. He wants you to help him get his job back. When you telephone the manager Mr Owen, he says that he has witnesses who saw Mr Mankayi drunk on duty. When you ask him why he did not give Mr Mankayi a disciplinary hearing, Mr Owen says that there was no way he could have given Mr Mankayi a hearing - he was too drunk at the time.

Mr Mankayi says that he was drinking the night before, but he had not drunk anything on the day that he was dismissed.

What are his rights?

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

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

  1. Mr Owen should not have dismissed Mr Mankayi for a first offence. He should first have applied corrective and progressive discipline, with the aim of correcting the problem. He should have given Mr Mankayi a warning.
  2. Mr Owen also did not follow a fair procedure to dismiss Mr Mankayi, including giving him fair notice of a disciplinary hearing and holding the hearing.

See Dismissal for misconduct, for the requirements for a fair hearing

What can you do?

If Mr Mankayi is a member of a union, refer the matter to the union.

This is a clear case of unfair dismissal. You can write to the employer demanding that Mr Mankayi be reinstated. Mr Mankayi must indicate to the employer that he does not consider himself dismissed and is available to work. He should go to work every day until he is ordered off the premises by Mr Owen. Keep a record of all such incidents.

See Model letter 3 Letter of demand to employer for reinstatement

If Mr Owen does not respond to the letter and continues to refuse to give Mr Mankayi his job back, you can refer an unfair dismissal dispute to the the relevant body:

  • Bargaining Council if Mr Mankayi 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

Remember to do so within 30 days of Mr Mankayi being dismissed from the company.

See PROBLEM 4: Dismissed worker wants the job back (How to apply for reinstatement or compensation)


PROBLEM 7: Worker is dismissed for being drunk on duty

(The worker is suffering from alcoholism)

Mr Beshe, a worker, is dismissed for being drunk on duty. Mr Moloto, the manager, tells you that this is not the first time that Mr Beshe 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. Mr Moloto says this is the 'last straw' and he does not want Mr Beshe back.

What are his rights?

  1. If the worker often gets drunk and cannot do the job, then the worker might be suffering from alcoholism.
  2. Alcoholism is a sickness. If a worker is an alcoholic, then being drunk on duty is not misconduct but rather incapacity (in other words, the worker is incapable of doing the job properly).
  3. 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.
  4. Before dismissing the worker for incapacity, the employer must counsel the worker and assist him or her with getting medical treatment if necessary.
  5. Only if the worker's condition does not improve or the worker's ability to do the job properly does not improve, should the employer think of dismissing him or her.
  6. The employer must still be able to prove that there was a fair reason and a fair hearing before the worker is dismissed.

See When is a dismissal fair?

What can you do?

  1. Find out from Mr Beshe 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 Mr Beshe have a hearing before being dismissed?
  4. If there was no counselling and no hearing before Mr Beshe was dismissed and the employer refuses to take Mr Beshe back, then you should declare a dispute with the employer. Follow the normal steps for reinstatement to get Mr Beshe's job back for him.

See PROBLEM 4: Dismissed worker wants the job back (How to apply for reinstatement or compensation)

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

Joe and five other workers have been employed by a sub-contracting company (a company that hires out the services of workers to companies, farms, etc). The employer (from the company) who hired them told them the contract would run for 3 weeks. After two weeks Joe and one other worker are paid their second week’s wages and they are told that the firm no longer needs them for the third week.

What does the law say?

Joe and the other workers entered into a three-week contract and both parties are bound by this contract of employment. Joe and the other worker 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-worker 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 receive overtime money 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 worker 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 days 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 workers 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 worker’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 dismissals

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 worker 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

Mrs Iris Gumede 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 2002. On 30th August 2002 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 are her rights?

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 What are the conditions for claiming UIF?

What can you do?

You must first work out if Mrs Gumede's application is late.

First take the date she was dismissed: 5th February 2002. Then take the date she made her application: 30th August 2002. Work out the number of months between these two dates. From 5 February 2002 to 30 August 2002 = 6 months 25 days.

According to the law, Mrs Gumede 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 Naude’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 are his rights?

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 a worker’s wage/salary to the Fund every month (1% is deducted from the worker’s salary, and 1% is paid by the employer).

See How do workers 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 Naudé 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. Each time the date for his next visit is written on his card.

He goes for a few weeks and then finds he is too busy, so he misses one time. He only goes again after a 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 are his rights?

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.

See Unemployment benefit

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

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

If the worker 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 worker will have to re-register for UIF benefits and start all over again.

What can you do?

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

See UIF appeals
See Model letter 5 Letter of appeal against the refusal to pay UIF
See Resources, for addresses

If no money was paid out at all because the person did not sign the register more than once, then 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 Model letter 4 Letter to UIF because benefits have not been paid


PROBLEM 15: Long delay in paying Compensation

Stephen Jacobs 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. Mr Jacobs still has not received any Compensation. His employer has not paid him anything since the date of the accident.

What are his rights?

Mr Jacobs' 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 worker.

An employer has to pay compensation (that he would normally receive from the Commissioner) to the injured worker 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.

See Steps to claim disability

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

See Notice
See Unfair dismissals

What can you do?

  1. Stephen Jacobs 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 worker, 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 7.

See Model letter 6 Letter to Compensation 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 worker 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. Then the worker must complete it. 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, and if there are any documents the Commissioner is still waiting for. Check that the Commissioner has all the correct addresses.

See Model letter 7: Letter to Compensation 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 worker.

  1. You can try to get Mr Jacobs' wages, notice pay and any outstanding leave pay from the employer.

See PROBLEM 2: Worker wants to claim notice pay and leave pay

  1. Mr Jacobs may have been unfairly dismissed.

See PROBLEM 4: Dismissed worker wants the job back (How to apply for reinstatement or compensation)

        Mr Jacobs may want to take action about an unfair dismissal.

See Solving disputes under the LRA
See PROBLEM 19: Worker is injured on duty and loses the job

        Because he was dismissed so long ago, you will have to apply for condonation.


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

A worker 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 are her rights?

For all types of disability (temporary and permanent) there are certain ways of working out whether the compensation money has been correctly calculated.

See What types of Compensation payment are made?

Workers with permanent disabilities are paid permanent disability compensation. This is worked out according to the Compensation list of percentage disabilities.

See Permanent disability

It is up to the Compensation Commissioner to decide what percentage disability the worker has, based on the medical reports from the doctor who treats the worker.

It may happen that the doctor makes a mistake and gives the worker a percentage disability which is too low. This means the worker will get less Compensation money.

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 8.
  2. Read What types of Compensation payment are made? to calculate whether the compensation money was correctly calculated. If you find it too complicated, contact one of the organisations listed under OHSA and COIDA in Resources to help you with the calculations.

See What types of Compensation payment are made?
See Resources, OHSA and COIDA, Organisations

  1. If it seems that the doctor made a mistake with the percentage disability, the worker has a right to a second opinion from another doctor. This is called a re-assessment of the injury.
  2. The worker can get a second opinion from an independent doctor but the worker must pay this doctor. This can be expensive.
  3. 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 worker should have got more money, the worker will be refunded.
  4. If the worker 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 worker's claim as listed in MODEL LETTER 8.

See MODEL LETTER 7: Letter to Compensation asking for reasons for the delay in paying


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

Mr Tsheliso 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.

What are his rights?

Mr Tsheliso has to stay completely off work, but he will be able to go back to work later. So he has a total temporary disability.

Compensation often takes a very long time to be paid out. It is the employer’s duty to pay Mr Tsheliso for the first 3 months from the date of his injury. The amount paid will be the same as he will receive from the Commissioner (usually of normal wages). The employer can claim this back from the Compensation Fund.

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 Mr Tsheliso his Compensation.

See Model letter 7 Letter to Compensation asking for reasons for the delay in paying

  1. You can demand that Mr Tsheliso's employer pay him Compensation. Note that Mr Tsheliso gets Compensation instead of his wages, not as well as his wages.

Work out how much the Compensation money should be. Mr Tsheliso is paid weekly.Include regular bonuses, allowances and regular overtime. To get his monthly wage, multiply his weekly wage by 4.3. Then take ¾ of his monthly wage, to get the monthly Compensation amount for the first 3 months off. (The formulas for partial temporary disability and permanent disability are different.)

(weekly wage * 4.3) * 3 ÷ 4

The employer should be paying Mr Tsheliso this Compensation amount every amount. The employer already owes Mr Tsheliso for the first month.

If the employer refuses, report the matter to the Compensation Commissioner.

  1. All doctor's and hospital bills and any medicines needed 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, Mr Tsheliso must keep all slips and accounts. You can help him claim them back from the Commissioner.


PROBLEM 18: Injured worker gets too little Compensation to live on

A worker complains to you that the Compensation money which she was paid by the Compensation office is just not enough to live on, and she cannot support her children on the money.

What are her rights?

Compensation never pays injured workers their full wages. Almost all compensation payments are based on ¾ of normal wages.

See What types of Compensation payment are made?

Compensation money does not increase with industry wage increases or cost of living increases. It stays the same until the government announces an increase of payment in the Government Gazette.

There is no payment for pain and suffering, or for the extra costs a disabled person faces, or for the loss of a job. The Compensation Act takes away the worker's right to make a private claim against an employer for pain and suffering, loss of earnings, and so on.

What can you do?

You cannot solve these problems with a phone call or a letter to the Compensation office. The Compensation office cannot solve this problem because compensation is controlled by the Compensation Act.

This matter must be dealt with through the unions. It does not help to wait for the Compensation Act to change. Workers can make demands on management to make changes immediately.

For example, workers can demand that

  • employers pay injured workers full wages when they are off work because of an accident
  • pensions must be at least equal to full wages
  • pensions must rise the same as wage increases and the cost of living.


PROBLEM 19: Worker 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 are his rights?

The employer can only dismiss Piet for a good reason and by following proper procedures.

See Unfair dismissals

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 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 (he is unable to do his job).

What can you do?

See PROBLEM 4: Dismissed worker wants the job back (How to apply for reinstatement or compensation)
See Steps to claim disability

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.

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


PROBLEM 20: Worker'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 are her rights?

  1. Certain employers do not have to contribute to the Fund. So they 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 usually pays compensation for all accidents which happen 'in the course and scope of duty'.

See Who can claim Compensation from the Fund?

But sometimes the Compensation Commissioner will not pay Compensation.

See When will the Fund not pay Compensation?

What can you do?

  1. Check that the worker was injured in her work and that she does not fall into any of the categories 1-3 above.
  2. Write a letter to the Compensation Commissioner asking them for their reasons for refusing to pay Compensation.

See Model letter 7 Letter to Compensation asking for reasons for the delay in paying

  1. Once you have more information, write to one of the organisations who help workers with problems regarding injuries. Tell them what the problem is and ask them to assess the worker's injury themselves. Send them copies of all the documents that you have.

See Resources

  1. If the worker 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 UIF appeals

        Remember to include all the necessary details of the worker as listed in Model letter 8.


PROBLEM 21: Workers develop a work sickness

Some workers in a dried fruit factory felt dizzy and started crying one day. The doctor who saw them said that they were hysterical. The workers think that something at work may be poisoning them, so they come to you for help.

What are their rights?

Many workers suffer from sicknesses which they get from the work that they do. These are called occupational diseases or work sicknesses.

Most doctors are not trained to look for work sicknesses.

Also there is sometimes a long period between the exposure at work and the disease. This makes it difficult to connect the disease with the work exposure.

It may be that these workers are sick from exposure to chemicals used in the drying process of their work. Then they might be able to get Compensation.

Compensation for occupational diseases in the non-mining industry is covered by the Compensation Act. Mine and mineworks employees are covered by the Occupational Diseases Mine Workers Act.

What can you do?

Refer the workers to another doctor for another opinion. Or contact one of the organisations listed under OHSA and COIDA in Resources for their opinion.

See Resources, OHSA and COIDA, Organisations

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