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Question:

Are employees earning above the threshold entitled to ask for time off in lieu of overtime remuneration?

Answer:

Overtime hours and remuneration for employees earning above the threshold are not regulated by law. These items are regulated by the employee’s contract.

LLMC

Provided by Labour Law Management Consulting



Question:

Does leave still accumulate during maternity leave?

Answer:

During the course of maternity leave, there is still an employment relationship and the terms and conditions remain applicable.  As such leave, will accumulate as normal.

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Provided by Dynamic Labour Frontiers



 Question:

We are medium-sized company in the manufacturing industry and employ over 1 100 staff.
 
Over the past few years because of internal labour/union pressures – such as maintaining Employment Equity - we have recruited apprentices. On many occasions, nepotism is the order of the day when it comes to selecting these individuals.

As per the act, an apprentice has to sign a four-year apprentice contract. These contracts are provided by the Merseta as we belong to this body. There are three parties to this agreement:

  • Apprentice,   
  • Company, and
  • Merseta.

Only once the contract has been completed, and the applicant has been lodged and indentured by the Merseta, is he is a registered apprentice.  Apprentices are required to complete a monitored training schedule and after they complete the minimum criteria they can request to write a trade test.  If they are deemed competent they are then classified as a qualified artisan.
 
However, there are a few problems which have arisen:
 
1.    The individuals who were employed prior to becoming apprentices with letter of conditions of employment as per the MEIBC main agreement,
2.    They apply for an apprenticeship and sign the above-mentioned Merseta contract, and
3.    After completing the conditions of the contract by either passing and becoming an artisan, or failing to meet the criteria of the contract before the contract’s ‘expiry date’ on the fourth year, the contract is rescinded irrespective with no extension to the contract.  
 
I am of the strong belief that once the apprentice has signed the Merseta contract and the contract is indentured, their original conditions of employment are no longer valid. Once the apprentice has honoured the Merseta contract - either by becoming an artisan or completing the calendar duration of the contract - it is now null and void. In other words, at this point in time they do not have a condition of employment and are effectively unemployed.  

It seems to be the general expectation by the individual and labour – i.e. shop stewards – is that there is automatic employment here, either as an artisan or back in the workplace in their original positions.
 
As far as I am concerned, there are no conditions of employment here. Their apprentice contract superseded the original conditions of employment and they have completed the conditions of the apprentice contract.
 
Does it mean that because the company has a contract with student they are automatically employed or can the company select the best to work for them?

Answer:

The primary issue here is the apprentice contract signed by an individual who is in the employment of the company and not those who join the training programme from an unemployment position.

The Merseta contract is a legally binding contract and nullifies any previous contract in place.  As such, upon completion of the four-year apprentice agreement the company has every right to make the decision about whether to employ the person or end the relationship.  They have no obligation to take the person back and employ him/ her in their previous position.

It cannot be expected for a company to keep a position open for a four-year period for an individual.  It is not practical to do so.

I must stress however that this scenario has not been tested in law and is therefore my opinion only.
 
Merseta, and in fact any other training/skills learning programme, are designed to uplift the community and provide skills to decrease unemployment:

  • Companies expend many hours and financial commitments in doing so however it was never the intention of any training programme to guarantee employment within the company but rather to provide an opportunity for any person to gain skills for them to seek employment.  Even though an individual may fail a course, the basic underlying skills are still provided enabling the individual to better him/herself for future employment.  

In this case, your company is to be commended for investing so much in uplifting the community but cannot be expected to keep positions open for four years “just in case” the person wishes to work there after the programme is complete.

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Provided by Dynamic Labour Frontiers

 

Question:

Will the company be held liable for an employee that drives to or leaves work drunk and kills somebody? If you are not saying that then the employee will most likely not be able to perform their required duties (office worker included) unless they can get safe transportation to and from work.

Answer:

The Company is NOT responsible for any employees actions to and from work (i.e. being under the influence of alcohol and thereby being involved in an accident of any nature), unless whilst driving a Company vehicle which is clearly marked as one.  There is debate as to the liability while using a company vehicle to and from work however the Company may be drawn into a legal battle.  It is not the Companies responsibility to provide safe passage to and from work for any employee thus arriving at work under the influence of alcohol will be dealt with by the Company in terms of his / her ability to work at the time.

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Provided by Dynamic Labour Frontiers

Question:

 

I've got the problem of the company changing hands when I applied for disability. H.R. decided to go with the new fund and after 15 months declined because the disability happened before we joined. Now they are reverting back to the old fund and want to stop paying me an income now. Is this fair?


Answer:

Further clarity is required in this instance as to whether the fund is pension / provident or otherwise.  Seemingly the Company made the decision to change over to a new fund and to revert back to the old one.  Therefore the Company has a responsibility to ensure that any benefits / disability grants etc are honoured to the full.

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Provided by Dynamic Labour Frontiers

Question:

What do you do when you know the rate per hour you are being paid is not market related and also that the employees working with you do not have certificates to proof any qualifications but I do, get paid more? 

Answer:

Firstly salary does not have to be market related, it is something negotiated between employee and employer.  Secondly with regards to a certificate or further education, these do not automatically warrant a higher salary as such may not be related to the position the individual holds. It bears mention that things such as length of service and experience may well play a role however if the qualifications warrant a higher salary a grievance must be submitted in order for the Company to deal with this appropriately.

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Provided by Dynamic Labour Frontiers




Question:

We are a small company of five employees and we have just dismissed an employee for being over six times over the legal driving limit.. His duties were to drive agricultural machinery on our site; the health and safety of people on our site is my responsibility. I consider this to be gross misconduct and we did have a hearing where he chose not to have a representative present. We informed him of the DES idiom in writing. Could he have any case for unfair dismissal?

Answer:

An employee can never be stopped from lodging an alleged unfair dismissal however two aspects are pertinent to defending the matter:

1.    Procedure and substantive reasons have to be proved at the CCMA or bargaining council.
2.    It is also very important that codes or procedures and disciplinary steps are recorded and given to all employees. In other words your policy should state that a driver reporting for work under the influence of alcohol (as a first offence) will be dismissed. If it states that a final warning would be issued this could jeopardise your defence. Consistency is also vital.

It seems that you have covered both procedure and substance however the charges drafted for the disciplinary hearing as well as appointing an independent chairperson could
have an effect.

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Provided by Dynamic Labour Frontiers




Question:

I have been using a traditional healer. Recently, I went to a traditional healer and when I came back with a certificate my employer said that they wouldn’t pay me for the days that the traditional healer had booked me off for. What can I do in this circumstance?

Answer:

“An employee is entitled to sick leave upon submission of a sick note from a traditional healer. However this must be supported by a practice number and the employer may verify same.

It is important to remember that there are only a number of sick days due to an individual and if these days are exceeded then it will be considered as unpaid sick leave despite producing a sick note.

It is also very important to remember to see a doctor and take the sick note to the company irrespective of whether it is paid sick leave or not. An employer may decide to take disciplinary action if there is no sick note or justification for the absence and no notice to the employer regarding the absence.”

 

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Provided by Dynamic Labour Frontiers




Question:

As an employer, I received a sick leave note from a traditional healer for one of my employees. The Basic Conditions of Employment Act (BCEA) does not consider sick notes issued by traditional healers to be valid. The sick note in my possession states that the traditional healer is registered under 'Traditional Health Practitioners Council of South Africa’, and it states the registration number of the traditional healer. How do I go checking if this traditional healer is legitimately registered with the 'Traditional Health Practitioners Council of South Africa’

Answer:

We are required by law to accept sick notes from THP’s however they must be registered.  As with any sick note you may confirm the validity with the doctor or Traditional Healer and this may be taken further by contacting the HPCSA and Traditional Healers Forum to verify the practice numbers.

•    http://www.hpcsa.co.za/

•    http://www.traditionalhealth.org.za/t/traditional_healing_and_law.html

No doctor or traditional healer may divulge the nature of the reason for the visit however he / she can confirm whether the individual attended the practice and whether they have been booked off or not.

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Provided by Dynamic Labour Frontiers




Question:

How do you dismiss a manager for incompatibility?

Answer:

The process used here depends on the specific history and circumstances of the case. The laws regarding this are highly complex and dangerous to employers. I would need to get further clarification before setting out a strategy.

LLMC

Provided by Labour Law Management Consulting



Question:

Company X uses the services of a labour broker until they decide to employ the labour broker’s employees. However, when the employees were employed by the labour broker they were being paid R66.39 per hour and now company X wants to pay them R53.67 per hour. Can company X do this?

Answer:

The client is allowed to make this offer but the employees do not have to accept it. However, in this situation the client can change its mind about taking them over.

LLMC

Provided by Labour Law Management Consulting



Question:

When am I legally required to submit a skills plan?

Answer:

SETA's are established, inter alia:

(c) to encourage employers--

i. to use the workplace as an active learning environment;

ii. to provide employees with the opportunities to acquire new skills;

iii. to provide opportunities for new entrants to the labour market to gain work experience; and

iv. to employ persons who find it difficult to be employed;

24. Registration of persons that provide employment services.--(1) Any person who wishes to provide employment services for gain must apply for registration to the Director-General in the prescribed manner.

(2) The Director-General must register the applicant if satisfied that the prescribed criteria have been met.

(3) If the Director-General--

a. registers an applicant, the prescribed certificate must be issued to that person; or

b. refuses to register an applicant, the Director-General must give written notice of that decision to the applicant.

(4) A registered employment service must comply with the prescribed criteria.

The following two links are very informative and should provide you with all the necessary information.

http://www.labour.gov.za/DOL/legislation/acts/how-tos/skill-development/how-to-set-up-learnerships-if-you-are-an-employer

http://www.labour.gov.za/DOL/legislation/acts/basic-guides/basic-guide-to-private-employment-agencies

 

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Provided by Dynamic Labour Frontiers




Question:

Do Internet sites, like LinkedIn, need to register in South Africa? These sites function like the private employment services.

Answer:

"Sites like LinkedIn will not be required to register as private employment agencies. LinkedIn is a social networking site for professionals. LinkedIn does not fall within the definition of "private employment agency" which is any person who provides employment services for gain. LinkedIn also does not provide "employment services" as defined by the act as Linkedin does not advise/counsel/assess work seekers. LinkedIn also does not refer job seekers to certain advertised positions or assist job seekers in applying those provisions. Having regard to the definition of "private employment agencies" and "employment services" we do not envisage that social networking sites for professionals will be required to register as a private employment agency. It could, however, be possible that a private employment agency could operate through an internet site an depending on the services provided and as such could be required to register in terms of the act."

Provided by Cliffe Dekker Hofmeyr

 

 


Question:

I'm sitting with the following situation: An employee of mine comes late most of the time. He's been given a verbal warning, first written warning and second written warning during a two-month period. He's still coming late because he feels as if he's 'untouchable'. I decided to notify him to appear at a disciplinary inquiry instead of giving him a final written warning. Is this fair?

Answer:

If you have skipped the final warning because, in the last incident of late-coming the employee came extremely late or there is another serious aggravating circumstance, the CCMA might well accept this. otherwise it is very risky.

LLMC

Provided by Labour Law Management Consulting




Question:

Hi, I employed an office administrator and then changed the persons job description to a sales and marketing consultant. The person resigned and listed her previous job title as Sales and Marketing. A dispute was lodged by her current employer that she falsified her CV as she was not officially appointed as a Sales and Marketing consultant as I never changed her formal employment contract although we had a verbal agreement in place. Can the new employer charge her for falsifying her CV in this case?

Answer:

If you give him an affidavit confirming that he was transferred to sales & marketing and agree to testify (telephonically) at his hearing any dismissal would be grossly unfair.

LLMC

Provided by Labour Law Management Consulting



Question:

What if there were no written warnings given and the employee was dismissed for being late - by 45 minutes – on the day?

Answer:

It is likely that the CCMA would find the dismissal to be unfair.

LLMC

                       

 

 

Provided by Labour Law Management Consulting


Question:

I, myself, am not a labour expert. I have merely been involved in labour relations at my company for a good number of years. Often questions arise and I approach a few labour experts, with each having their slightly diverse interpretation, which can this place us in a difficult situation when having to apply consistency without creating a precedent in an organisation of over 1 000 employees. It’s simple enough to get experts ‘advice’ but it’s often incredibly difficult to apply. To date, I’ve had a few legal opinions and we’ve encountered contradictory outcomes. Issues such as summary dismissal vs dismissal and breach of contract vs repudiation of contract all becomes too misleading to fathom. Many simply say that the rule of thumb is: ‘A misconduct dismissal is not a dismissal through no fault of anyone. This means that there is NO notice pay’.

Answer:

Dismissal for misconduct is a fault dismissal. However, even when the seriousness of the case merits dismissal there is no set formula for how severe the dismissal should be. That is, a dismissal without notice is a more severe form of dismissal reserved for those exceptionally serious forms of misconduct such as major theft or aggravated assault.

The chair must assess the level of seriousness of each individual case on its own merits and decide whether it is a dismissal with or without notice. Dismissal without notice could be justified where the misconduct caused serious material loss to the employer.

LLMC

                       

Provided by Labour Law Management Consulting


Question:

I would like to know if employers can lock you into an employment contract without an option to leave, e.g. a clause such "neither party may terminate for four years". Is this allowed?

Answer:

Labour law does not prohibit such lock-in - I do not know about civil law. However, if the employer reserves the right to fire you for misconduct you might be able to wriggle out if they take you to civil court.

LLMC

Provided by Labour Law Management Consulting



 

Question:

Hi. May a doctor book a person off from work without having examined the patient and just speaking to them on the phone? May this happen on a regular basis?

Answer:

Under labour law there is nothing said about this practice. In my opinion an employer would have good cause to query the validity of a certificate obtained via a tele-consultation. This is because the doctor would not be able:

• To know via the phone who he/she is talking to,
• Whether the ‘patient’ is telling the truth about the symptoms, and
• How serious the alleged illness is in terms of how long to book the patient off for.

However, because labour law is so biased in favour of employees, the employer would need to back-up the above arguments with a document from the Health Professions Council who, I hope, might say that telephone-based medical certificates are not acceptable.
Therefore, in order to avoid legal problems, I suggest that you ask the Health Professions Council to say in writing whether medical law and ethics allow as this practice.

LLMC

Provided by Labour Law Management Consulting



 

Question:

How does the Employment Services Act affect recruitment agencies? Does this act apply to external vacancies as well as internal ones?

Answer:

In terms of section 10 of the Employment Services Act (ESA), the Minister of Labour may make regulations requiring employers to notify the Department of Labour of any vacancy or new position within their establishments. The Minister has not yet made or published such regulations. Therefore, currently there are no obligations on employers to report vacancies to the state.

 

 

 

Provided by Cliffe Dekker Hofmeyr




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