Employment contracts: what the law says you must do

You hire Edward as your manager. He starts work on Monday without signing his employment contract. You ask him on Thursday to sign the document, but he refuses because he doesn’t agree with the restraint of trade clause. You threaten to cancel the contract. He threatens to go to the CCMA because, having started work, he has automatically become your employee. In this situation Edward is right – you can’t cancel his contract. If you want him to sign, you will have to take out the restraint clause. Rather ensure Edward signs the contract – including the restraint of trade clause – before you appoint him or he commences employment. If he refuses to accept the terms of employment, you don’t have to employ him, because he has neither signed the contract, nor begun work. The South African labour laws offer your employees protection, but they also allow you a degree of flexibility in what you agree with your employee – so you need to be proactive and protect yourself. Do this by taking these three steps today: Design an employment agreement (whether it’s in the form of a contract or a letter) that complies with the law, but fits with your business requirements. Make it a requirement for the selected job applicant to sign the contract BEFORE commencing employment Explain (with the aid of an interpreter if necessary) the contents of the contract to the employee/applicant in a language he understands. This is required by law. By law, there are 17 elements that must be contained in the employment contract. Protect your business by including another nine vital points in the contracts. What does the law say you must do: You must give your employees, in writing, the terms and conditions of their employment. This document can take the form of a letter of appointment, or you can create a more formal contract of employment – the form doesn’t matter it’s the content that’s important. Getting your employee to sign the document avoids disputes about whether or not it was given and what it contains. You must do this when the employee starts employment and you must retain the document for at least three years after termination of the employment relationship (Section 29 of the BCEA). You must also update this employment document and provide the employee with a new copy when: the law changes you and your employee agree to changes in the terms and conditions you increase the employee’s pay or benefits (this you could do in a supplementary letter). TIP: Better late than never! Check all your personnel records and draw up the employment documents now, even if your employees have been working for you for years. Even part-time staff must have a contract This law applies to you if your employees are temporary or part-time, even if they: have a fixed employment period, or only work one day a week, or only work every weekend, or only work half day. In other words, anyone who qualifies as an ‘employee’ should receive this document from you (refer to chapter E03 in Labour Law for Managers loose leaf service). Three easy steps to protect yourself from legal comebacks. Remember - As South African labour laws offer your employees more protection than they offer you, you need to be proactive and protect yourself!

What's happening with EE right now?

What's happening with EE right now? 1. President Zuma signed the EE Amendment Act into law last week and it comes into being 01 August 2014. This means that all designated employers will now need to meet the new EE requirements from today, going forward. The EE amendments make provision for such things as annual reporting for all designated employers; a much greater level of detail in EE Plans and in the reporting of EE; and a positive obligation on employers to investigate and reduce income differentials – to name but a few of the 26 key changes. The penalties for non-compliance have also increased, and you'll now face penalties of up to R2,7 million or 10% of your revenue turnover! That’s a huge amount of money to shell out if you’re found wanting. And keep in mind that not having a fully compliant EE Plan carries amongst the highest penalties! 2. In February 2014, new draft EE Regulations (EEA1, EEA2 – The EE Report; EEA3, EEA4 – Income Differential Report, etc.) were published for comment. There also seems to be great confusion out there regarding these EE Regulations, especially around the way that EE statistics must be calculated. Originally, the draft regulations had provisions that required top and senior occupational levels within organisations to be compared to the national demographic data for those same levels, while other levels had to be compared to the average between the national and regional demographics – but, thankfully, the government has u-turned on that and it has been scrapped. We’ll now do EE analyses using the regional and national EAP (economically active population) demographics for all levels. One thing you can be sure of, is that once the draft EE Regulations are promulgated, they'll have a huge effect on how companies plan for, implement and report on EE – so things will only get tougher going forward. Until next time, Ilene

Managing Poor Performance & Incapacity

Managing Poor Performance & Incapacity Book Now for our 2 day course. 18 - 19 February 2014 Managing Poor Performance & Incapacity equips managers and supervisors with the knowledge and skills to investigate, counsel and deal with cases of poor performance, incompatibility, intermittent absenteeism, sick leave abuse, genuine incapacity and repeated minor misconduct. This programme is targeted at team leaders and employee representatives. Based on a proven system integrating medical referrals and professional counselling/rehabilitation with the corrective disciplinary requirements of the LRA, this programme takes a fresh look at discipline in the workplace. Content • Demonstrate an understanding of the legislation underpinning the 
management of poor performance, absenteeism, sick leave, 
incapacity and minor misconduct at the workplace. • Apply a structured problem solving approach to dealing with 
employee shortcomings in the workplace. • Identify unacceptable employee performance and behaviour and counsel and/or reprimand an employee constructively. • Refer an employee for professional counselling/medical assessment. • Conduct a formal corrective interview with an employee and take 
appropriate corrective action. • Give recognition to an employee whose performance or conduct has improved. Full List of Public Workshops Full List of Training Programmes BOOK NOW IN... Contact B&A

Labour Relations Amendment Bill 2012 - 
By Gavin Stansfield, Director in the Employment practice at Cliffe Dekker Hofmeyr 

The Labour Relations Amendment Bill 2012 is currently in the process of parliamentary debate. If passed, it is likely to come into effect towards the end of 2012 or the beginning of 2013. In the first of a series of articles, the most important proposed amendments shall be discussed as they are likely to affect most employees within South Africa. 

The term "organisational rights" refers to those rights granted to a trade union within the workplace. They are governed by chapter 3 of the Labour Relations Act (“LRA”). The rights afforded to a trade union are dependent on their level of representativeness in the workplace. There are two levels of representativeness in the workplace: sufficient and majority representation. Although not specifically defined in the LRA, a union is regarded as being sufficiently representative if it enjoys anywhere between 15% and 50% membership of all employees within a workplace. A union which has attained sufficient representation is entitled to enter an employer's premises in order to recruit members or otherwise serve their members’ interests. In addition thereto, a sufficiently representative trade union is entitled to insist that an employer deduct from the wages of a union member union subscriptions or levies payable to that trade union which are paid over to the union directly. 

In addition, if an employee happens to be an office-bearer of a sufficiently representative union, such employees are entitled to reasonable paid time off every year in order to carry out union functions. Majority unions (50% + 1 member within a workplace) enjoy all of the preceding rights, in addition to which they are entitled to appoint shop stewards, the number of which depends on the total number of employees employed within that workplace. This is a crucial right for majority unions as shop stewards act as the voice of the union within the workplace. In terms of the 2012 Amendment Bill, it is proposed that unions who have only reached sufficient representation within a particular workplace shall nonetheless be entitled to appoint shop stewards and to have access to certain information of the employer provided that no other trade union within that workplace has been granted majority status within the workplace. These “majority rights” lapse if the trade union concerned ceases to remain the most representative trade union within the workplace. 

The practical effect of this is that unions will no longer have to achieve majority status within a workplace in order to demand the appointment of shop stewards and to exercise the right to information (s16 of the LRA) currently afforded only to majority unions. 

This is without doubt a victory for labour as these rights are currently the exclusive preserve of majority unions. Supporters of the amendment argue that it is appropriate for minority unions to be afforded the rights in question. 

Those not in favour of the amendments argue that the sections dilute the principle of majoritarianism and will increase competition and probably friction between trade unions at the workplace.

You are invited to a presentation

Does maternity leave protect the employee?

Lately, our house has been filled with the blessing of baby sounds, little hands, precious feet and angel eyes! We have many friends that also had little angels enter their homes and it seems that baby talk has taken over the conversation at almost every gathering.

I have noticed from these conversations that most people had many questions regarding maternity leave and the rights and obligations seems unclear to many. I decided to use this topic for my next blog and share some tips and advice with you.

Let me start by saying, those of you who had maternity leave, thank your employer. I am serious! As a sole proprietor, I had to face the reality of no income whilst I chose to spend the first few months with my baby at home. I have had the benefit of paid maternity leave twice before, and I truly realised now what a huge benefit this was. To my previous employers, thank you for the luxury you granted me. I now work from home with my three children and attempt to build up my business again. The reality is, it is not easy doing it on your own and I seriously believe that more employees should be grateful to their employers for the benefits they receive.

Most people know that they are entitled to maternity leave. However, when a female employee becomes pregnant, a range of issues immediately confront both parties – most important of which include the effects of her pregnancy on her job and her absence from work both before and after the birth of her child.

It is in dealing with these issues in relation to maternity leave, that I realised the application of maternity leave principles seem unclear. I have decided to discuss some basic questions but also to include an example of a specific scenario. I hope this will give some of you (employers and employees) better insight to ensure the correct application of maternity benefits.


Some basic questions are:

Are you entitled to maternity leave? And if so, how much leave ...
The answer is yes. All female employees can take at least four consecutive months’ unpaid maternity leave (Section 25(1) of the BCEA). In practice, collective agreements between employers and trade unions and individual contracts of employment often address the
issue of maternity leave and the associated benefits. In some instances, these agreements mirror the provisions of the Basic Conditions of Employment Act (BCEA), but often they can be more generous.

Important: Chapter Three of the BCEA (which deals with all types of leave) doesn’t apply to:
• your employees who work for less than twenty four hours per month
• leave granted to your employees that is in excess of the minimum entitlement granted to your employees in terms of the BCEA. For example, if you grant your employees five consecutive months’ unpaid maternity leave, Chapter Three of the BCEA won’t
apply to the one month in excess of the statutory minimum.

Do you have to pay employees on maternity leave?Employers aren’t obliged by law to provide paid maternity leave (Section 25(7) of the BCEA).
It’s common for employers (especially larger employers) to provide their employees with benefits during their period of maternity leave. The amount of the benefits payable varies from company to company.

Can your maternity leave ever be reduced to less than 4 months?The bottom line is that the core rights in the BCEA cannot be reduced. Any collective agreement must be consistent with the Act. As maternity leave is a core right, no agreement may reduce the period of maternity leave granted to employees in terms of the BCEA
(although employees themselves often choose to return to work earlier than this).
Remember: Maternity leave is unpaid (Section 25(7) of the BCEA).

Should your job be kept open for you while you are on maternity leave?The right to return to the same or comparable job after pregnancy related absence is protected in South Africa. A dismissal includes the refusal to allow an employee to
resume work after she has taken maternity leave in terms of any law, collective agreement or her contract of employment (Section 186(c) of the Labour Relations Act).
A dismissal on the basis of pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair (Section 187 of the Labour Relations Act).

Also, if you offer an employee returning from maternity leave a lesser position than the one she held before, it would amount to unfair discrimination on the basis of pregnancy, which goes against the Employment Equity Act, or even a constructive dismissal (when you, as an
employer, cause the resignation of an employee because you have made continued employment intolerable).


When must the employer be notified that you will be taking maternity leave?For the employer to make arrangements regarding your e absence, she must notify you in writing (unless the employee is unable to do so) of the dates on which she intends to begin maternity leave and return to work (Section 25(5) of the BCEA). Your employee
must notify you:
• at least four weeks before she intends to begin maternity leave
• if it is not reasonably practicable to do so, as soon as is reasonably practicable.
Obviously there can be circumstances in which the employee doesn’t know in advance she will need to start her maternity leave earlier than was planned or envisaged, hence the reason for the last proviso (Section 25(6) of the BCEA).

Does an employee have to disclose her pregnancy when applying for a job?No – in the case of Thandi Mashava v Cuzen and Woods Attorneys (2000) 21 ILJ 402 (LC) the Court held that employees needn’t disclose their pregnancy to their employers, and that the dismissal of Thandi Mashava on the basis of deceit for withholding that information from the employer amounted to an automatically unfair dismissal.



What about adoption?Maternity leave (on whatever basis you ordinarily offer maternity leave) is also usually offered to female employees who adopt a new born or small baby and failure to do so may be considered discriminatory.

Due to the economic climate of the past few years, we have entered a long season of retrenchments, operational changes, optimisations, restructurings etc.
Many employees believe that they cannot be retrenched whilst on maternity leave.
Is this true, or can employees on maternity leave form part of a restructuring process? If the employer decides to retrench an employee who is on maternity leave, or who has just returned from maternity leave, the reasons must be genuine and may not be related to the pregnancy or the fact that you have taken maternity leave. The Employer can include the employee on maternity leave in the process and should not neglect the consultation obligations towards that employee.

ExampleYour company is undergoing a restructuring exercise. The employer consult with all affected employees, and after applying fair and objective selection criteria, a person who has just returned from maternity leave is dismissed for operational reasons. The reason for her dismissal in this case is genuine, as it has to do with the operational requirements of the business and not her pregnancy or leave. However, if you dismiss an employee for operational reasons simply because she has taken maternity leave – the reason for her dismissal won’t be genuine. If your decision to retrench is a sham, you risk having to compensate the employee with 24 months’ pay.




You may not discriminate against pregnant employees!! There are a number of legislative provisions that prohibit discrimination on the basis of pregnancy. These include:

• the Constitution, which prohibits direct and indirect discrimination on the grounds of pregnancy
• the Labour Relations Act in terms of which any dismissal of an employee on the grounds of
pregnancy or any other reason related to pregnancy constitutes an automatically unfair dismissal (see page L06/010)
• the Employment Equity Act, which prohibits direct and indirect unfair discrimination against any employee on the basis of pregnancy.

Should you require any assistance in relation to maternity leave application in your workplace, do not hesitate to contact me.

As always, yours in service,
Ilene

Employee privacy - what about it?

The issue of employee privacy featured high on my to do list this month. I had two clients who had a great deal to learn and a high price to pay because they did not understand the issue of employee privacy.

Firstly, my one client was dismissed because of the content of skype communications she had with her husband where she discussed her management and expressed her frustration that she experienced at work. She had signed an electronic communications policy and the Company claimed she breached the policy and dismissed her. Secondly, my other client, an employer, had to deal with a PA who sat on facebook and social webpages for hours at a time during working hours. The Employer had no policy in place and also discovered that the employee had been sending her confidential material via mail to friends and other contacts. Several downloads were made from websites and printed at work. This client had to spend a lot of time and money to correct this situation and to prevent this from happening again.

Whilst doing research on these two cases, I read that the Federal Cabinet in Germany has approved a draft law, which states employers can search for information about a job applicant online…but only on search engines or professional networking sites, not Facebook. This is because Facebook is a social, not professional, networking site, so the employer would be invading the applicant’s privacy.

I’m curious to see if South Africa will adopt a similar stance. The issue of employee privacy should be at the forefront of your mind, given the Protection of Personal Information Act .
Both my clients asked questions like, can an employer monitor private emails and Internet use, and are they allowed to monitor their private laptops and memory devices while they’re on company property?

As an employer, you must state in your employment contract or company policy that you have the right to monitor this. Furthermore, the employee must have signed that he/she agrees to this. If you don’t have signed consent, you may still be able to monitor activity if you have informed the employee you will, and it's for legitimate business purposes. The 'ROICA' legislation regulates this. This won't apply to private laptops where the employees may have an expectation of privacy, unless they have consented explicitly.

I strongly urge all employers to implement a policy that allows you to monitor electronic communications at the workplace and to which employees consent before you go ahead and please get all your employees to sign this policy!

It is important that staff acknowledge that they are aware of the Company’s IT Policy and that there is no guarantee or expectation of privacy on their part when using the Company’s IT systems and to this end, expressly waive any right to privacy that they may be entitled to when using the Comapny’s IT systems.

Expressly inform staff that any failure to observe and adhere to this Policy may, if applicable, result in the Company instituting disciplinary action against them, and if found guilty of such infringements this may lead to removal of their Internet privileges or dismissal, amongst other disciplinary sanctions, in terms of the Company’s Disciplinary Code.

It was sad to see how two individuals were affected negatively as a result of their failure to regard this issue in a serious light. Internet abuse and e-mail abuse is no laughing matter and if left unmanaged, it will have a detrimental effect on your profit and productivity.

If you do not have systems or policies in place to protect your business interest regarding internet and e-mail usage, you could face a serious challenge in terms of the Protection of Personal Information Act. And to all employees out there, don’t loose your job because you think the Company will not enforce their communications policy. It’s just not worth it!
For more information regarding this issue, please contact me. As always, I am happy to help.

Yours in service,
Ilene Power