Frequently Asked Questions
Get quick answers to your labour related questions by utilising our FAQ section. If the answer you are looking for is not listed, you can try our search facility, or "Ask an Expert".
All FAQ's are grouped into four major categories, namely Basic conditions of Employment, Disciplinary Hearings, Employment Equity and Labour Relations Act.
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The Basic Conditions of employment Act allows only certain deductions from salary for debt and damages caused to the employer. The employee must have agreed to the deduction. A refusal to pay salary is breach of contract and contra to the BCEA. If the employee earns below the income threshold a complaint can be lodged with the department of labour. Otherwise the employee has a civil claim or can refer a dispute to the CCMA in terms of the BCEA.
The BCEA, section 34 allows only certain deductions from salary for debt and damages caused to the employer. The employee must have agreed to the deduction. The employer may not deduct more than 25% of the employee’s remuneration at a time.
Notice pay is the amount of money an employer can pay an employee in lieu of notice when the employee’s service is terminated. This is regulated by contract or by section 37 of the BCEA. Notice pay is one week for six months or less; two weeks for 6 months to a year and one month if the employee has been employed for 1 year or more.
The employer must pay within 7 days of the last working day.
Yes, the employer can enter into an agreement with the employee to repay the loan, the payment must be agreed to in writing and cannot be more than 25% of the remuneration of the employee.
The BCEA, section 42 does not allow for an employer to withhold a certificate of service.
The BCEA defines remuneration as any payment in money or in kind or both, made or owing to any person in return for that person working for the employer. This may include benefits paid to the employee over and above basic salary.
The Basic Conditions of Employment Act and the Labour Relations Act applies to all employees. The fact that you do not have a contract does not protect the employer.
No, there is not payment unless the employer has agreed to do so. The employee must claim maternity benefits from the Compensation Fund.
Senior managerial employees are excluded from chapter 2 of the BCEA (section 6) and can therefore not claim overtime unless the employer has agreed to it contractually, which is over and above the BCEA.
All employees, whether part time or fixed term are entitled to the benefits of the BCEA, including overtime.
This Act applies to all employers and employees except the National Intelligence Service and unpaid volunteers in charitable purposes. It also applies to persons undergoing vocational training. It does not apply to persons on vessels at sea.
In terms of section 29 of the BCEA, an employer must provide an employee with written particulars of employment upon commencement of employment. The BCEA applies whether the employee has a contract of employment or not.
This is the amount of money paid or payable to an employee in respect of the ordinary hours of work (45 per week or 9 per 5 day week or 8 per 6 day week) the employee works per week or per day.
An employee is entitled to 21 consecutive days leave in a cycle of 12 months, or by agreement 1 day for every 17 days worked or 1 hour for every 17 hours worked.
It is an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally. Some collective agreements or bargaining council agreements has its own definition for this term.
An employee may take at least 4 consecutive months’ maternity leave to commence 4 weeks before birth. No employee may work for 6 weeks after the birth of a child, unless a doctor approves it.
If the domestic worker or gardener works longer than 24 hours per month then they are covered by all the sections of the BCEA.
The Employer can deduct his leave and thereafter it is unpaid leave. The employer should investigate abuse of sick leave if the employee’s leave shows a pattern of abuse.
Resignations cannot be withdraw without the consent of the employer.
The employer must pay the employee at least one and a half times the employee’s wage for overtime worked.
Employees are entitled to sick leave equal to the period the employees will work in a six week period, over a period of 36 months. For employees working a 5 day week it is 30 days over 36 months.
A Basic condition of employment as set out in the BCEA automatically constitutes a term of any contract of employment except to the extent that any other law provides a more favourable term or the basic condition has been changed or varied or excluded or a term of the contract is more favourable than the BCEA.
The employer cannot refuse your resignation. It is your right, if they do it is forced labour which is contra to the Basic Conditions of Employment act. Your resignation stands as from the date you left the employ. If you did not give the agreed upon notice period the employer may have a civil claim against you for breach of contract.
An employer may not require an employee to work overtime except in accordance with an agreement and more than 10 hours overtime a week. An employee may not be required to work more than 12 hours per day.
Yes, but the employer must remunerate the employee double the employee’s wage, unless the Sunday is an ordinary work day, in which case the employee must be paid one and a half time the normal wage.
Employees are entitled to double pay (section 16 of the BCEA) for Sundays and Public Holidays. Employers may not require employees to work more than 45 hours in a week and hours a day if the employee works more than 5 days a week. The rest should be paid as overtime.
This is not regulated by the BCEA but by employer’s policies. If the employer does not regulate this via a policy then the employee must take a full day sick leave.
In terms of section 40 of the BCEA an employer must pay an employee any accrued leave on termination of employment, if the employee has been employed longer than 4 months.
Your salary is part of your terms and conditions of employment. It cannot be amended without your agreement. Normally employers will consult and aim to reach an agreement on the issue, failing which they will enter into retrenchment discussions for operational reasons. If you are not satisfied with the process you can refer an unfair labour practice to the CCMA.
The Basic Conditions of employment Act, 75 of 1997, section 32 requires employers to pay remuneration to employees within 7 days of termination of the employment contract.
Affirmative action is the measures an employer must implement to ensure that all employees of Designated groups are equally represented in all occupational levels and equitably treated.
This is the consultation forum created in order to comply with the consultation obligation of the employer in terms of section 16 and 17.
The employer must follow the procedure as in their disciplinary code. If they do not have one, then they must follow schedule 8 of the labour relations act. A minimum of 48 h must be given and the employee must be informed of the charges against him/her with sufficient detail to understand what he/she is being charged with.
Employees are entitled to reasonable period notice to prepare a defence. The norm is 2 working days. 5 days will not be too long and will ensure that the employee receives enough time to prepare for the hearing. Employers must apply their codes should they have one dealing with the topic.
Poligraph examinations are mostly requested by employer and the results are therefore released to the employer. If the employee is charged or loses a promotion as a result thereof she is entitled to defend herself against the allegations and is therefore entitled to see the results. Polygraph evidence must be supported by other direct evidence as it is corroborative only. Refusing a promotion purely based on the polygraph may result in an unfair labour practice.
The employee can be requested to undergo the test and refusal can lead to disciplinary action for breach of contract. The polygraphist will however ask for consent as part of his testing procedure.
The employer must prove the case against the employee by providing the evidence. The witness must testify and the opportunity be given to the accused to cross question the witnesses. An alleged offender must be provided the opportunity to defend himself – it is a crucial requirement for a hearing.
You are entitled to record the proceedings. Inform the employer thereof at the beginning of the proceedings.
Any employee is duty bound by his employment contract to make his service available to the employer and to perform his duties, even when under investigation or being charged for misconduct.
The employer must follow the time period prescribed by its disciplinary code and procedure. If it does not have a code then the norm is 48 hours’ notice.
The employer bears the burden of proof that the employee is guilty and must provide sufficient evidence in a disciplinary hearing to prove that the employee is guilty.
The employer must supply the accused employee with sufficient information to understand the charges and to be able to prepare a defense. Documents must be supplied to the employee but not witness statements. The witnesses must be called to testify.
The law requires discipline to be swift. However giving 5 days’ notice is not excessive and will ensure that the employee receives enough time to prepare for the hearing. Employers must apply their codes should they have one dealing with the topic.
The employee is entitled to defend himself in a disciplinary hearing and the employer cannot prevent him to call a witness. Doing so will be a substantive unfair conduct.
The norm is 48 hours but the employee is entitled to sufficient time to prepare a defense and arrange witnesses. If the documents and information are volumous the employer should give more notice to allow the employee to properly prepare.
The employer must prove the charges against the employee in a disciplinary hearing. If the employer knows it does not have evidence and still finds the employee guilty, it is an unfair decision.
Poligraph examinations are mostly requested by employer and the results are therefore released to the employer. If the employee is charged or loses a promotion as a result thereof she is entitled to defend herself against the allegations and is therefore entitled to see the results. Polygraph evidence must be supported by other direct evidence as it is corroborative only. Refusing a promotion purely based on the polygraph may result in an unfair labour practice.
There is not specific time frame, however the law requires discipline to be swift. The chairperson should not take weeks to make his finding.
The employer cannot dismiss an employee without giving the employee a fair opportunity to defend herself. Evidence must be presented to show guilt and the employee has the right to defend herself in either a formal or informal hearing.
The employee can be requested to undergo the test at any time and refusal can lead to disciplinary action for breach of contract. The polygraphist will however ask for consent as part of his testing procedure. The employee can refuse but risk charges based on breach of contract.
Employees can be represented by a fellow employee or a shop steward. Outside representation or legal representation is normally not allowed.
Expired warnings do not disappear from the record of the employee. Although it is not a valid warning, it can still be considered as an aggravating factor.
Employees can be dismissed for abscondment of any period determined in the employer policy, normally 3 days or more. If the employee returns after a period of time the employer must hold an abscondment hearing to determine whether the employee had the intention to abscond or has a credible reason for being absent. Employees must refer an unfair dismissal for abscondment within 30 days of the dismissal coming to their attention.
Employment Equity deals with the duty of employers to find and eradicate unfair discrimination in the workplace and to ensure equity and equality in the workplace of all Designated groups. This is achieved through affirmative action (AA) measures which are consistent with the EEA (Employment Equity Act)
The EEA applies to Designated Groups. It includes Black, Coloured, Indian male and females, White females and Disabled people. Foreigners are excluded unless they became citizens on or before 27 April 1994 or were entitled to become citizens on this date had it not been for apartheid.
No employer may discriminate against employees in terms of section 6 of the EEA. Section 3 dealing with AA applies to Designated employers. An employer becomes a Designated employer when it employs 50 or more employees, or if fewer than 50 employees has an annual turnover that is equal to or above the turnover set out in schedule 4 of the EEA. Excluded are the Secret Service, the National Defence Force and the National Intelligence Service.
To inform employees about EE; To seek, find and eradicate unfair discrimination in the workplace; To implement AA measures to address inequality and promote equality and equitable representation of all Designated Groups in all occupational levels; Collecting information and conducting the analysis; Prepare and implement an EE Plan; To report to the DOL;; To address income differentials based on unfair discrimination; To ensure equal pay for work of equal value
Section 6 defines unfair discrimination. No employer may unfairly discriminate, directly or indirectly against an employee in any employment policy or practice on one or more ground listed in the section or on any other arbitrary ground. It is also unfair to distinguish between salary or benefits of employees for any discriminatory ground such as race, gender or disability.
Employees can refer a dispute to the CCMA in the area where the employee is employed, for unfair discrimination or harassment. If the dispute remains unresolved it will either be adjudicated at the CCMA through arbitration or must be referred to the Labour Court.
All employees are entitled to be equally representative in the workplace.
The process starts with information sharing and disclosure to employees. The summary of the act (EEA3/2014) must be displayed in the workplace and the employer must then ask the employees to complete EEA1 form.
Equity and equality deals with the different principles of the EEA. “Equity” is a principle of the EEA which determines that every person is entitled to equitable treatment in the workplace. "Equality” deals with being equal.
The EEA is written for employers and employees, and an employment relationship must thus exist for the Act to apply. The EEA applies to all employers when dealing with discrimination, whether you have one employee or more. With regard to affirmative action the EEA applies to Designated employers and Designated employees. All employers are covered, only the Defence force, National Intelligence and the Secret Service are excluded. NGO’s or voluntary organisations or schools or a crèche will also be covered, as long as they comply with the definition of “Designated”.
When the employee works longer than 3 months for the employer.
No, it should be noted that impairments which can be corrected such as hearing aids or glasses, do not count. The second requirement should also be considered. The impairment must be at least for a year or recurring and must substantially limit the employee’s prospects of entering into employment or be advanced or promoted in employment. HIV and diabetes are does not count.
This is the International Labour Organisation. It is an international organisation that South Africa belongs to as a member state. This organisation will have directives and conventions on various labour matters to which the member states subscribe. These conventions and directives are then ratified by the member state and written into the laws of the member state. That is why some of our legislation subscribes to the ILO conventions, in the case of the EEA, convention 111, dealing with unfair discrimination.
The employment equity plan must be considered first. If the plan is silent on this issue then the plan will fall away and recruitment and selection can be done on merit without preference to any group of the Designated employees. As soon as the employer’s workforce profile drops below the required level, the plan will be implemented again and preference will be given to Designated employees.
The EEA does not set quotas so the employer will not be fined for not achieving its targets and goals, however a constant non achievement of targets and goals may result in a review by the DOL to determine why the employer is failing. The DOL may then make recommendations to the employer to assist it with future targets and goals.
Smoking in the workplace, on balconies or in the walkway near the entrance to a building or in the basement is prohibited by law and punishable by a fine. If it is causing health problems for an employee it can also amount to constructive dismissal. The employee should lodge a formal grievance against the smokers.
EE deals with the duty of employers to find and eradicate unfair discrimination in the workplace and to ensure equity and equality in the workplace of all Designated groups. This is achieved through affirmative action (AA) measures which are consistent with the EEA (Employment Equity Act)
Employers must report on 1 October for manual reports and 15 January for electronic reports. Employers who becomes a Designated employer between 1 April and 1 October of a year, must report by the 1st of October of the following year.
a. The employee must complete a CCMA form 7.11 or if the employee falls within a Bargaining Council, then they must complete the BC documents. b. The dispute must be referred to the CCMA within 6 months of the transgression. c. Cases of sexual harassment will be adjudicated by the CCMA through arbitration. d. Employees earning less than R 205 433.30 can refer the unfair discrimination cases to the CCMA for arbitration as well. e. Employees earning more than the threshold must still refer the dispute to the CCMA for conciliation and thereafter to the labour Court.
Employees can refer a dispute to the CCMA in the area where the employee is employed, for unfair discrimination or harassment. If the dispute remains unresolved it will either be adjudicated at the CCMA through arbitration or must be referred to the Labour Court.
Equity deals with the process and concept of fairness
a. The Designated employer must display a summary of the EEA as contemplated in section 25(1). This document is contained in EEA3. b. The employer must also display, the report, the plan, any compliance order, undertaking and arbitration award or labour court order at a prominent place.
The EE Plan is the plan of the employer, flowing from the analysis process in terms of which the employer plans to address barriers and to implement affirmative action measures to achieve equity and equality in the workplace.
Section 16 requires Designated employer to take reasonable steps to consult and attempt to reach agreement on the matters referred to in section 17. Matters for consultation are the conduct of the analysis, the preparation and implementation of the EE plan and the report.
The employer must analyse the profile of the workforce and the discriminatory practices to determine the degree of under representation of Designated groups
The Designated employer must report to the Director General of the Department of Labour and address reports to the Employment Equity Registry, Department of Labour, Private Bag x117 Pretoria, 001, or submit electronic reports to the website of www.labour.gov.za.
There is no fine for not reaching a target, however the DOL can review the EE process of the employer and make recommendations or give compliance orders
Employees can refer a dispute to the CCMA in the area where the employee is employed, for unfair discrimination or harassment. If the dispute remains unresolved it will either be adjudicated at the CCMA through arbitration or must be referred to the Labour Court.
The Designated employer must consult with a representative trade union, or employee representatives of which they must represent the interest of all Designated employees across the occupational levels and from the non-Designated group.
This must be determined by the forum and the employer. As a norm, the he forum should meet at least once every three months.
Yes this can happen in terms of the compliance process. An inspector can request a written undertaking (EEA5) or issue a compliance order (EEA6)
No employer may be forced to dismiss employees for EE purposes.
Managers must be part of the process. EE compliance can be part of their merit assessment or KPI’s or can be part of bonus payments.
Where do I find information and are there any information documents to help employers and employees?
The Department of Labour website supplies information. Further information is supplied in the forms and annexures to the Employment Equity Regulations of 2014 as published in the Government Gazette 37873 of 1 August 2014.
The wording to a job post must be carefully considered. One cannot place an absolute bar on job applicant’s applying for the position who may not be employment equity candidates. The wording should read that the employer is seeking an employment equity candidate for the position, rather than only equity candidates will be considered.
There should never be an absolute bar in any job advertisement. Any one typically should apply although the reality is that someone with 3-4 years’ experience is fairly experience in his or her field and a graduate should typically look for junior roles if they hope to be successful.
This is discriminatory. They are discriminating on gender and race and this is not permissible in terms of the Act.
In context to this question, the webinar was considering what may be a ‘suitably qualified’ candidate for an AA candidate. As emphasis in employment equity is also on training young and vulnerable workers to get the necessary skills necessary to sustain a developing economy, it is imperative that employment equity candidates must be favoured over other candidates who may have the necessary experience as the managerial prerogative is better placed to assess whether through a reasonable period of training that candidate may gain the necessary skills and expertise. Graduates who are AA candidates will be considered in this assessment. As graduates are always in a position where they have no practical work experience, the legislature is trying to address this through mechanisms of the employment services act.
No, it is not part of the yearly report. The yearly report is the only document submitted to the DOL. The Plan will only be presented on request from the DOL or an inspector, during a review procedure or when the employer is visited by the DOL inspector.
Expat employees are entitled to the proctection of the CCMA and are covered by the Labour Relations Act. The company must go through a consultation process with you where you must have the opportunity to make you representations. Ask them to give you some time to get a new job and to keep your work permit alive till then. Your new employer will in any event have to apply for a new work permit. If the employer does not have work for you they can retrench you but must follow the correct procedure. You can google section 189 of the Labour Relations act for the requirements and also find information on the department of labour’s website. You can also find assistance from the CCMA.
Employees dismissed for reasons based on the employer's operational requirements (Section 41 of the BCEA) are entitled to severance pay or a retrenchment package of at least one week's remuneration for each completed year of continuous service with the employer, unless the employer is exempted from paying severance.
The employer is probably contemplating retrenchment or restructuring. The best solution would be for the employees to arrange a meeting and request the employer for clarity. Keeping everybody in the dark may be a bad practice from the employer’s side as the employees may start leaving due to the uncertainty.
Employees who are being retrenched must receive a retrenchment package of 1 week per completed service. The benefit of a company car will depend on the employer’s policy in this regard as these benefits are not regulated by law.
Yes, the recognition agreement is not an requirement for wage negotiations nor the does it prevent the employer from implementing when there is a deadlock in the negotiations. The union can then call out a strike in terms of section 65 of the LRA.
Labour Broker employees are seen as vulnerable employees in terms of the new Labour Relations Amendment Act. Under new legislation these employees are protected and may not receive less benefits as the employees of the client. After six months the labour broker employee are deemed to be the employee of the client. This amendment Act is not in in working yet.
Under the current LRA there is not expectation for permanent employment. However the LRA amendment Act does allow for such an expectation.
Short time is a measure designed to avoid dismissals due to retrenchment. The employer must agree on the period and terms of short time with the employees. Thereafter, the employer can consider retrenching employees.
No. Resignation is an intrinsic right to an employment contract and the employer cannot refuse the employee to resign.
Not paying an employee’s salary amounts to a breach of the employment contract and can amount to constructive dismissal.
This is a technical or interim point raised by either of the parties in an arbitration. For example : the employer can raise a point in limine that the CCMA does not have jurisdiction.
There is insufficient research on the effect of the e-cigarette in the workplace. The employer should regulate this through a policy. The employees do not have the right to smoke it in the workplace without consent of the employer.
Yes, you have to attend, failing which you will be in contempt.
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