Questions and Answers

What is the notice period in terms of termination of employment?

In terms off the Basic Conditions of Employment Act, any party to an employment contract must give to the other notice of termination as follows:

* One week, if the employee has been employed for 6 months or less;
* 2 weeks, if the employee has been employed for more than 6 months by not more than one year;
* 4 weeks, if the employee has been employed for more than 6 months
* A collective agreement may shorten the 4 weeks notice period to not less than 2 weeks
* Notice must be given unless it is give by an illiterate employee

What is the procedure for termination of employment?

Whilst the contact of employment makes provision for the termination of employment, it must be understood that the services of an employee may not be terminated unless a valid and fair reason exists and fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure the employee may approach the CCMA for assistance.

Pro- rata leave and severance pay might be payable.

In the event of a worker being unable to return for work due to disability the employer must investigate the nature of the disability and ascertain whether or not it is permanent or temporary. The employer must try to accommodate the employee as far as possible for example, amending or adopting their duties to suit the disability. However, in the event of it not being possible for the employer to adapt the workers duties and/or to find alternatives then such employer may terminate the services of the worker.

The Labour Relations Acct 66 of 1995 sets out the procedures to be followed at the termination of services in the Code for Good Practice, in Schedule 8.

What about matters such as transport allowances, bonuses, increases etc.?

These are not regulated by Basic Conditions of Employment Act and are therefore open to negotiation between the parties.
What does the Act says about working hours?

Normal hours (excluding overtime)

* A worker may not bee made to:
*Work more than 45 hours a week
work more than nine hours per day for a five day work week;
work more than eight hours a day for a six day work week; and

a Worker may not work more than three hours off overtime per day or 10 hours per week.

Overtime must be paid at 1.5 times the employer's normal wage or an employee may agree to receive paid time off.

Daily and weekly rest periods

A daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive ours, which must include Sunday, unless otherwise agreed, must be allowed.

The daily rest period by agreement be extend to 60 consecutive hours two weeks or be reduced to eight hours in any week if the rest period in the following week is extended equivalently.
What does the Act says about meal intervals?

A worker is entitled to a one-hour break for a meal after not more than five hours work. Such interval may be reduced to 30 minutes, by agreement between the parties. If required or permitted to work during this period, remuneration must be paid

What does the Act says about Sunday work?

Work on Sundays is voluntary and a worker can therefore not be forced to work on a Sunday.

If the employee works on a Sunday he/she shall be paid double the daily wage.

If the employee ordinarily works on a Sunday he/she shall be paid one and one-half time the wage for every hour worked. Paid time off in return for working on a Sunday may be agreed upon.
What does the Act says about Public holidays

The days mentioned in the Public holidays Act must be granted but the parties can agree to further public holidays. Work on a public holiday is entirely voluntary and a worker may not be forced to work on such public holiday.

These days can be exchanged for any other day by agreement.

If the employee does work on a public holiday he/she shall be paid double the normal day’s wage.

What does the Act says about annual Leave

Annual leave may not be less than 21 consecutive days for full time workers or by agreement, one day for every 17 days worked or one hour for every 17 hours worked.

The leave must be granted not later than 6 months after the completion of the period of 12 consecutive months of employment. The leave may not be granted concurrent with any period of sick leave, nor with a period of notice of termination of the contract of employment.

What does the Act says about sick leave?

During every sick leave cycle of 36 months an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

The employer is not required to pay an employee if the employee has been absent from work for more than two consecutive days or more on more than two occasions during an eight week period and on the request by the employer does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

What does the Act says about maternity leave?

The employee is entitled to at least four consecutive month’s maternity leave. The employer is not obliged to pay the domestic worker for the period for which she is off work due to her pregnancy. However the parties may agree that the domestic worker will receive part of or her entire salary/wage for the time that she is off due to pregnancy.

What does the Act says about family responsibility leave?

Employee’s employed for longer than four months and for at least four days a week are entitled to take three days paid family responsibility leave during each leave cycle when the employee's child is born, or when the employee's child is sick or in the event of the employee's spouse or life partner or parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

Can an employer make deductions from my salary without my permission?

The Basic Conditions of Employment Act prohibits an employer from deducting any monies from the workers salary without his/her written permission. (Excluding pension, taxes and unemployment fund contributions).

Are there any other issues, which are not regulated by the ACT?

There are certain other issues which are not regulated by the Basic Conditions of Employment Act such as probationary periods, right of entry to the employers premises, afternoons off, weekends off and pension schemes, training/school fees, funeral benefits and savings account, however the aforementioned may be negotiated between the parties and included in the contract of employment.

Is there any prohibition of employment?

The Basic Conditions of Employment Act prohibits employment of any person under the age of 15 and it is therefore important for an employer to verify the age of the domestic worker by requesting a copy of the identity document or birth certificate.

What does the Act says about other conditions of employment?

There is no provision, which prevents any other conditions of employment being included in a contract of employment but any provision, which sets conditions which are less favourable than those set by the Act, should be invalid.
Summary of the Employment Equity Act, 55 of 1998, issued in terms of Section 25(1)

1. Chapter 1 – Definitions, purpose, interpretation and application

1.1 Purpose of the Act: Section 2

The purpose of the Act is to achieve equity in the workplace, by

a. promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and

b. implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, to ensure their equitable representation in all occupational categories and levels in the workforce.

1.2 Application of the Act: Section 4

a. Chapter II (sections 5 – 11) applies to all employers and employees.

b. Chapter III (sections 12 – 27) applies to designated employers.

c. A designated employer means an employer who employs 50 or more employees, or has a total annual turnover as reflected in Schedule 4 of the Act, municipalities and organs of state. Employers can also volunteer to become designated employers.

d. A designated group means black people, women, or people with disabilities.

e. The South African National Defence Force, National Intelligence Agency, and South African Secret Services are excluded from this Act.

2. Chapter 2 - Prohibition of Unfair Discrimination

2.1 No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds including race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth.

2.2 It is not unfair discrimination to promote affirmative action consistent with the Act or to prefer or exclude any person on the basis of an inherent job requirement.

2.3 Medical Testing: Section 7

a. Medical testing of an employee is permissible only when legislation requires testing or when this is justifiable for various reasons.

b. HIV testing is prohibited unless such testing is determined to be justifiable by the Labour Court.

2.4 Psychological Testing: Section 8

Psychological testing and similar assessments are prohibited, unless the test is scientifically valid and reliable, can be applied fairly to all employees, and is not biased against any employee or group.

2.5 Disputes concerning this Chapter : Section 10

a. An employee, or applicant for employment, may refer a dispute concerning alleged unfair discrimination (or medical or psychological testing) to the CCMA for conciliation. This must be done within six months of the alleged discrimination (or testing)..

b. If a dispute is not resolved at conciliation, a party may refer it to the Labour Court for adjudication. The parties to a dispute may also agree to refer the dispute to arbitration.

c. Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the Labour Relations Act. The dismissal must be referred to the CCMA within 30 days.

3. Chapter 3 – Affirmative Action

3.1 Duties of a Designated Employer: Section 13

a. A designated employer must implement affirmative action measures for designated groups to achieve employment equity.

b. In order to implement affirmative action measures, a designated employer must:

· consult with employees;

· conduct an analysis;

· prepare an employment equity plan; and

· report to the Director-General on progress made in the implementation of the plan.

3.2 Affirmative Action measures: Section 15

a. Affirmative action measures are measures intended to ensure that suitably qualified employees from designated groups have equal employment opportunity and are equitably represented in all occupational categories and levels of the workforce.

b. Such measures must include:

* identification and elimination of barriers with an adverse impact on designated groups;
* measures which promote diversity;
* making reasonable accommodation for people from designated groups;
* retention, development and training of designated groups (including skills development); and
* preferential treatment and numerical goals to ensure equitable representation. This excludes quotas.

c. Designated employers are not required to take any decision regarding an employment policy or practice that would establish an absolute barrier to prospective or continued employment or advancement of people not from designated groups.

3.3 Consultation: Sections 16 and 17

A designated employer must take reasonable steps to consult with representatives of employees representing the diverse interests of the workforce on the conducting of an analysis, preparation and implementation of a plan, and on reporting to the Director-General.

3.4 Disclosure of Information: Section 18

To ensure meaningful consultation, the employer must disclose relevant information to the consulting parties, subject to section 16 of the Labour Relations Act 66 of 1995.

3.5 Analysis: Section 19

A designated employer must conduct an analysis of employment policies, practices, procedures, and working environment so as to identify employment barriers that adversely affect members of designated groups. The analysis must also include the development of a workforce profile to determine to what extent designated groups are under-represented in the workplace.

3.6 Employment Equity Plan: Section 20

a. A designated employer must prepare and implement a plan to achieve employment equity, which must:

* have objectives for each year of the plan;
* include affirmative action measures;
* have numerical goals for achieving equitable representation;
* have a timetable for each year;
* have internal monitoring and evaluation procedures, including internal dispute resolution mechanisms; and
* identify persons, including senior managers, to monitor and implement the plan.

3.7 Report : Section 21

a. An employer who employs fewer than 150 employees must submit its first report to the Director-General within 12 months after the commencement of the Act, and thereafter every 2 years on the first working day of October.

b. An employer who employers 150 or more employees, must submit its first report 6 months after the commencement of the Act, and thereafter every year on the first working day of October.

3.8 Designated employer must assign a manager: Section 24

A designated employer must assign one or more senior managers to ensure implementation and monitoring of the employment equity plan and must make available necessary resources for this purpose.

3.9 Income Differentials : Section 27

A statement of remuneration and benefits received in each occupational category and level of the workforce must be submitted by a designated employer to the Employment Conditions Commission (ECC).

Where there are disproportionate income differentials, a designated employer must take measures to reduce it progressively. Such measures may include collective bargaining, compliance with sectoral determinations (section 51 of the Basic Conditions of Employment Act); the application of norms and benchmarks recommended by the ECC, relevant measures contained in skills development legislation, and any other appropriate steps.

4. Chapter V – Monitoring, Enforcement and Legal Proceedings

4.1 Monitoring: Section 34

Employee or trade union representatives can monitor contraventions of the Act and report to relevant bodies.

4.2 Powers of the Labour Inspector: Section 35

Labour Inspectors are authorised to conduct an inspection as provided for in sections 65 and 66 of the Basic Conditions of Employment Act.

4.3 Undertaking to Comply: Section 36

If the inspector has reasonable grounds to believe that a designated employer has failed to comply with its obligations in terms of the Act, the inspector will obtain a written undertaking to comply within a specified period.

4.4 Compliance Order: Section 37

If the designated employer refuses to comply with the written undertaking, the inspector will issue an order to comply.

4.5 Review by Director-General: Section 43

The Director-General may conduct a review to determine whether an employer is complying with the Act.. On completion of the review, the Director-General may make recommendations for compliance within certain time frames.

4.6 Powers of the Labour Court: Section 50

The Labour Court has the powers to make any appropriate orders, award compensation, or impose fines.

4.7 Protection of Employee Rights: Section 51

The Act protects employees who exercise their rights and obligations under the Act against victimisation, obstruction and undue influence.

5. Chapter VI – General Provisions

5.1 State contracts: Section 53

Designated employers and employers who voluntarily comply with Chapter III, who seek to do business with any organ of state, will have to apply for a certificate from the Minister confirming their compliance with Chapters II and III of the Act. Non-designated employers’ compliance certificates will pertain to Chapter II.

5.2 Liability of Employers: Section 60

Should employees contravene any provision of this Act, while performing their duties, the employer will be liable unless the employer can prove that it did everything in its power to prevent the undesired act.