Labour Relations Q&A
Q. Do the Labour Relations Act (LRA) and Basic Conditions of Employment Act (BCEA) laws that regulate the employment relationship apply to foreign nationals working in South Africa?
A. Yes, South African employment laws apply to foreign nationals working in South Africa.
Q. Are there any age restrictions on employees?
A. There are no age restrictions specific for employees. However, it is prohibited to employ someone who is:
• Under the age of 15
• A child (an individual under the age of 18) cannot be employed if the job is inappropriate for an individual of that age
• Places at risk the child’s well-being, education, physical or mental health, spiritual, moral and social development.
Q. Are there any restrictions on working hours?
A. Working hours are restricted under the BCEA, which states that employees must not work more than either:
• 45 hours a week and nine hours a day (if they work a five-day week)
• Overtime hours can only be worked if the parties agree to this and the overtime is restricted to ten hours a week.
• The BCEA allows for some flexibility in the arrangement of working hours
Q. What rights do employees have regarding time off in the case of illness or injury?
A. During every sick-leave cycle (a three-year period), Employees are entitled to:
• 30 days for employees who usually work a five-day week.
• 36 days for employees who usually work a six-day week.
Q. What are the statutory rights of pregnant employees?
• Employees are entitled to four months’ statutory unpaid maternity leave
• Some employers offer maternity benefits, including paid maternity leave
• There are collective agreements that regulate the provision of maternity leave and benefits
• Employees can claim maternity benefits from the unemployment insurance fund.
• Pregnant or breastfeeding employees must not be required to perform work that is hazardous to their health or that will affect their children
Q. To what extent are temporary and agency workers entitled to the same rights and benefits as permanent employees?
A. An employee who works fewer than 24 hours per month for an employer is not protected under the BCEA, so minimum standards apply in respect of working hours do not. However, the employee is still regarded as an employee for the purposes of the LRA so has, for example, the right not to be unfairly dismissed.
Q. What is the notice period when an employment contract is terminated?
A. One week if the employee has been employed for six months or less. Two weeks if the employee has been employed for more than six months but less than one year. Four weeks if the employee has been employed for one year or more. Four weeks for domestic employees (employees who perform work in their employer’s household, such as gardeners, drivers and those who take care of dependants and farm workers), this notice period applies after six months. If an employment contract specifies a longer period, the contractual provision applies.
Q. What is a severance pay?
A. Severance pay only applies to dismissals for operational reasons (retrenchments). The statutory minimum is one week’s remuneration for every year of continuous service. Some collective agreements set out higher severance payments. There is also a procedural duty to consult employee representative bodies or the employees themselves over the issue of severance pay.
Q. What are the grounds that the employees may be dismissed on?
A. Dismissal is based on:
• On the employee’s conduct (Misconduct)
• On employee’s incapacity (Poor performance, ill-health or injury)
• On operational requirements ie Business needs (Retrenchments)
Q. Are there any restrictions or guidelines on what bonuses can be awarded?
A. There are no obligations or restrictions on the issue of bonuses. It is up to each employer to decide what sort of scheme it wishes to put in place and whether the bonus will be guaranteed or discretionary. If a collective bargaining agreement exists that stipulates that employees receive bonuses then the employer has no choice but to respect the agreement.
Employment contract between an employer and employee stipulate that a bonus will be paid, then the employer will have to respect the contract or the employer will be in breach of contractual obligations. Also, when there is a case of an established custom and practice of the employer to pay out bonuses every year, thus creating a condition of employment and has set expectations.
Q. What steps should an employer take during probation to assist the employee to render satisfactory performance?
A. An employer should give an employee evaluation, instruction, training, guidance and counseling the employee requires to render satisfactory service.
Q. Employers may only deduct money from employees pay only if?
A. The worker agrees in writing to the deduction of a debt. The deduction is made in terms of a collective agreement, law (e.g. UIF contributions), court order or arbitration award.
Q. What are the guidelines when it comes to substantive fairness when an employee committed misconduct?
A. Was the breach of rule, legitimacy of rule, knowledge of rule consistency in application of the rule.