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Understanding a certificate of service

Upon termination of the employees’ contract of employment section 42 of the Basic Conditions of Employment Act requires that an Employer must furnish the Employee with a certificate of service.
This serves as proof that an employee was in fact in that employers service at the time and includes information such as the employee’s full name; the name and address of the employer; a description of any council or sectoral employment standard by which the employer’s business is covered; the date of commencement and date of termination of employment; the title of the job or a brief description of the work for which the employee was employed at date of termination; the remuneration at date of termination; and if the employee so requests, the reason for termination of employment.
A certificate of service although prescribed in terms of the Act may differ to the characteristics of a reference letter. As can be seen a certificate of service outlines basic information as opposed to a reference letter providing more details about an employee’s work ethics, attitude, performance and achievements whilst in the employ of that employer and thereby having more weight to it. It is noted that the employer is not obligated to furnish the employee with a reference letter under any prescribed legislation but must adhere to section 42 of the Basic Conditions of Employment Act.

Section 42 further states that if the employee so requests; the reason for termination can be stipulated. This will be at the request by the employee and may be controversial because an employee may not always want the Employer to disclose what gave rise to termination. Should the employer be called upon, it will be vital that this employer stick to facts and/or supporting documentation about the employee’s performance and termination during the course of his or her employment.
To arrange a consultation, for more information, with a member of our qualified team, contact Erin Steyn on 021 919 6418 or email erin@joblaw.co.za

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Severance pay: What it is (and how it differs from termination pay) and how to calculate it.

The Act provides, that operational requirements is defined as requirements based on the economic, technological, structural or similar needs of an Employer. When an Employee is dismissed for reasons based on the Employers operational requirements, also known as retrenchment, the Employee will be entitled to receive severance pay. Section 41 of the Basic Conditions of Employment Act states that an Employer must pay an Employee who is retrenched severance pay equal to at least one week’s remuneration for each completed year of continuous service with that Employer calculated by reference to the number of hours the Employee ordinarily works.
As for notice of termination of Employment, this occurs when an Employee wishes to terminate his/her contract of employment by way of resignation or if an Employer contemplates retrenching Employees based on the Employers operational requirements. The period applicable is regulated by Section 37 of the Basic Conditions of Employment Act and provides that one party shall give the other party notice of not less than seven days if the Employee worked less than six months, two weeks if the Employee worked more than six months but less than a year, and four weeks if the Employee worked for more than a year. During the period, the Employee will still be remunerated for the prescribed notice period worked calculated by reference to the number of hours the Employee ordinarily works and can only be waived if both the Employer and Employee party agree to it.
Both severance and notice of termination will apply and be paid when retrenchment is concluded, however only notice of termination will be applicable where the Employee has tendered his/her resignation to the Employer. To further understand what an Employees full entitlement will be when termination occurs either by way of retrenchment, resignation or dismissals based on misconduct, poor work performance or ill health or injury contact a Joblaw office in your area for more details.
To arrange a consultation, for more information, with a member of our qualified team, contact Erin Steyn on 021 919 6418 or email erin@joblaw.co.za

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Payments on termination – what do I owe my employees?

Whenever an employment relationship comes to an end, the Employee is entitled tocertain statutory payments. These include payment for any paid time off that theEmployee is entitled to in terms of overtime and/or Sunday hours worked and nottaken.
In addition, the Employee is entitled to his/her annual leave due and owing. The Employee’s annual leave entitlement will be calculated according to the contractual agreement and in the absence of said agreement, according to Section 20 and 21 of the Basic Conditions of Employment Act 75 of 1997. Section 20 (1) states that an Employee is entitled to one day’s annual leave for every seventeen days worked, or the remuneration calculated on any basis that is at least as favourable as the aforementioned.
These payments are seen as statutory entitlements and should be paid over to the Employee, regardless of the reason for termination.
To arrange a consultation, for more information, with a member of our qualified team, contact Erin Steyn on 021 919 6418 or email erin@joblaw.co.za

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Is a notice period compulsory with a termination of employment?

The Basic Conditions of Employment Act sets out minimum requirements to notice period(s) that must be adhered to by both Employer and Employee.
The provisions are, seven days if the employee worked less than six months, two weeks if the Employee worked more than six months but less than a year and four weeks if the Employee worked for more than a year. Employees who fall under Bargaining Councils or a Sectoral Determination will also be held liable to serve out the applicable stipulated notice period in accordance with its collective or main agreement.
If an Employee tenders a resignation with an insufficient notice period, the Employer will not be permitted to deduct any monies for the notice period not worked by the Employee. The Employee will however be in breach of contract and the Employer will instead have recourse to hold the Employee liable for the notice period not served.

The Employer can therefore seek relief from the courts in this instance and sue the Employee for damages or apply for specific performance required from the Employee.
For further information on the minimum wage and to ensure you are paying your employees in line with what is required for your sector, contact your nearest Joblaw offices.
To arrange a consultation, for more information, with a member of our qualified team, contact Erin Steyn on 021 919 6418 or email erin@joblaw.co.za

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I provide my employees with accommodation – How do I handle this situation when terminating?

Section 39 of the BCEA deals with accommodation that is provided by Employer upon termination of Contract of Employment.
Some Employers may provide Employees with accommodation that forms part of the Cost to Company and/or falls on Company premises.
If Employers decides to provide accommodation to Employees, they must keep the following in mind if the Contract of Employment is terminated.
If the Contract of Employment comes to an end prematurely, e.g., summary dismissal, the Employer must still permit the Employee at least one month accommodation. However, this is only applicable if the Employee has a one month and/or less notice period.

If the Contract of Employment states that both parties must provide each other with more than a months’ notice (e.g. two months’ notice) at termination of contract, the Employer will be obliged to permit the Employee to reside in the accommodation for such period as agreed upon in their Contract of Employment.
Furthermore, if an Employee elects to remain in the accommodation after his/her contract of Employment is terminated the Employer and Employee can determine an agreed upon amount for the accommodation. This agreed upon amount can then be deducted from the monies due and owing to the Employee over an agreed upon period as per Section 38 of the BCEA.
This section of the BCEA is influenced by various other sections of the BCEA, thus itis always advised to consult with Labour Lawyer/Labour Consultant before any steps are taken in this regard.
To arrange a consultation, for more information, with a member of our qualified team, contact Erin Steyn on 021 919 6418 or email erin@joblaw.co.za

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