2022
6th Dec 2022
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
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
6th Dec 2022
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
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
6th Dec 2022
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
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
6th Dec 2022
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
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
6th Dec 2022
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
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
7th Nov 2022
Why I have to Inform My Employees of their Rights
Legislation has set out certain rights that an Employee automatically qualifies for when he/she is employed. These rights are stipulated in the Basic Conditions of Employment Act 75 of 1997, Labour Relations Act 66 of 1995, Employment Equity and Regulations act 55 of 1998, to mention a few.
It is important that the Employer display these rights in the workplace, for all employees to read, to ensure that these are clearly visible and in the official languages which are spoken in the workplace.
Many Employees are not aware of their automatic rights and in this way, the Employer ensures they have access to and knowledge off their rights.
This article aims to provide general information and does not constitute legal advice. For more information contact 021 919 6418 OR erin@joblaw.co.za
It is important that the Employer display these rights in the workplace, for all employees to read, to ensure that these are clearly visible and in the official languages which are spoken in the workplace.
Many Employees are not aware of their automatic rights and in this way, the Employer ensures they have access to and knowledge off their rights.
This article aims to provide general information and does not constitute legal advice. For more information contact 021 919 6418 OR erin@joblaw.co.za
7th Nov 2022
What are the Deductions and Other Acts Concerning an Employee’s Remuneration?
Section 34 of the BCEA, Deductions and other acts concerning remuneration.
In the BCEA there are a few specified reasons as to why an Employer can deduct from an Employee’s remuneration.
These reasons fall within a few different categories, namely:
1. Reimbursement for loss.
2. Purchase of Goods by the Employee.
3. Deductions according to Law, Collective Agreement, Court Order or Arbitration Award.
4. Over payment of Remuneration.
Point one refers to financial losses caused by an Employee whereby the Employer is prejudiced.
This will appear as damages to company property and/or assets.
An example of this is, if an Employee operates a company vehicle but was negligent and drove the vehicle into an object that caused damages to the vehicle.
If an Employee causes damages to company property, the company will have to conduct the following procedures before they can deduct from the employee,
- Ensure that the damages were caused throughout the course of the Employee’s employment and confirm that the Employee was at fault.
- The total amount which the Employer will deduct does not exceed the actual amount of damages caused by the Employee.
- And that the deductions made are not more than a quarter of the employee’s total remuneration for the time period.
Point two refers to payment of goods by the Employee.
This will come into effect if Employees have an account to buy goods from thecompany.
When deducting for payment of goods, the Employer must ensure that the goodspurchased by the employee are specified in quantity and nature.
Point three refers to deductions according to Law, Collective Agreement, CourtOrder or Arbitration Award.
These types of deductions refer to PAYE, Union subscriptions and benefits asspecified in Collective agreements, namely Provident fund, Leave Pay fund and soforth.
Furthermore, Employers are permitted to deduct from the employee’s remuneration ifordered to do so by a Court and/or CCMA/Bargaining Council.
These deductions may not exceed 25% of the employee’s remuneration.
Point four refers to over payments of remuneration.
Over payments towards Employees sometimes occur and the good news forEmployers is that they can legally claim the amount back from the Employee.
However, this may only occur if there was a calculation error in calculating theemployee’s remuneration and/or if the employee acknowledged receipt of an amountgreater than what they received.
Employers are still advised to contact a Labour Consultant/Lawyer before making anydeduction from an Employee’s remuneration as each Bargaining Council’s CollectiveAgreement differs as to what is permitted and/or not permitted.
This article aims to provide general information and does not constitute legal advice.For more information contact 021 919 6418 OR erin@joblaw.co.za
In the BCEA there are a few specified reasons as to why an Employer can deduct from an Employee’s remuneration.
These reasons fall within a few different categories, namely:
1. Reimbursement for loss.
2. Purchase of Goods by the Employee.
3. Deductions according to Law, Collective Agreement, Court Order or Arbitration Award.
4. Over payment of Remuneration.
Point one refers to financial losses caused by an Employee whereby the Employer is prejudiced.
This will appear as damages to company property and/or assets.
An example of this is, if an Employee operates a company vehicle but was negligent and drove the vehicle into an object that caused damages to the vehicle.
If an Employee causes damages to company property, the company will have to conduct the following procedures before they can deduct from the employee,
- Ensure that the damages were caused throughout the course of the Employee’s employment and confirm that the Employee was at fault.
- The total amount which the Employer will deduct does not exceed the actual amount of damages caused by the Employee.
- And that the deductions made are not more than a quarter of the employee’s total remuneration for the time period.
Point two refers to payment of goods by the Employee.
This will come into effect if Employees have an account to buy goods from thecompany.
When deducting for payment of goods, the Employer must ensure that the goodspurchased by the employee are specified in quantity and nature.
Point three refers to deductions according to Law, Collective Agreement, CourtOrder or Arbitration Award.
These types of deductions refer to PAYE, Union subscriptions and benefits asspecified in Collective agreements, namely Provident fund, Leave Pay fund and soforth.
Furthermore, Employers are permitted to deduct from the employee’s remuneration ifordered to do so by a Court and/or CCMA/Bargaining Council.
These deductions may not exceed 25% of the employee’s remuneration.
Point four refers to over payments of remuneration.
Over payments towards Employees sometimes occur and the good news forEmployers is that they can legally claim the amount back from the Employee.
However, this may only occur if there was a calculation error in calculating theemployee’s remuneration and/or if the employee acknowledged receipt of an amountgreater than what they received.
Employers are still advised to contact a Labour Consultant/Lawyer before making anydeduction from an Employee’s remuneration as each Bargaining Council’s CollectiveAgreement differs as to what is permitted and/or not permitted.
This article aims to provide general information and does not constitute legal advice.For more information contact 021 919 6418 OR erin@joblaw.co.za
4th Nov 2022
What is the Prohibited Conduct by the Employer when it comes to an Employee’s Remuneration?
Section 34 describes deductions and other acts concerning remuneration and outlines that –
In essence hereof, it is vital that a written agreement make provision for such deductions from an employee’s remuneration, however in some prescribed circumstances this may not be required.
This article aims to provide general information and does not constitute legal advice. For more information contact 021 919 6418 OR erin@joblaw.co.za
- An employer may not make any deduction from an employee's remuneration unless- (a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or (b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award, the Act further provides that –
- A deduction in terms of subsection (1) (a) may be made to reimburse an employer for loss or damage only if - (a) the loss or damage occurred in the course of employment and was due to the fault of the employee; (b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made; (c) the total amount of the debt does not exceed the actual amount of the loss or damage; and (d) the total deductions from the employee's remuneration in terms of this subsection do not exceed one-quarter of the employee's remuneration in money.
- A deduction in terms of subsection (1) (a) in respect of any goods purchased by the employee must specify the nature and quantity of the goods.
- An employer who deducts an amount from an employee's remuneration in terms of subsection (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement, law, court order or arbitration award.
- An employer may not require or permit an employee to- (a) repay any remuneration except for overpayments previously made by the employer resulting from an error in calculating the employee's remuneration; or (b) acknowledge receipt of an amount greater than the remuneration actually received.
In essence hereof, it is vital that a written agreement make provision for such deductions from an employee’s remuneration, however in some prescribed circumstances this may not be required.
This article aims to provide general information and does not constitute legal advice. For more information contact 021 919 6418 OR erin@joblaw.co.za
4th Nov 2022
The Particulars of Employment and Remuneration
It is stipulated in section 29 of the BCEA that an Employer should provide an Employee with a list of particulars upon commencing the employment relationship. This is not only to inform the Employee of his/ her position, job title and a brief description of his/her duties, but to ensure both parties have all necessary information to carry out their responsibilities, as agreed upon.
As in all contracts, the details of each party should be stipulated, such as the Employer’s name, address and the Employee’s full name, surname, ID number and address should be clearly visible in said contract.
Further information such as: where would the Employee report for duty; the date the Employment contract commenced; days and hours that the Employee is required to work; the Employee’s rate / wage and method of payment; will the employee be eligible for overtime; any other cash payments, payments in kind; how frequent will he/ she receive payment and if any deductions will be applicable, all of these factors would be agreed upon and documented.
Further the Employee would need to know how the company allocates and approves leave; what notice period the Employee should give; or when termination of the Employment relationship would be; does the business belong to/ or have a council /sectorial determination and if there are any additional documentation that forms part of the contract of Employment.
These particulars should be revised and updated on a regular basis. Should any of the above-mentioned change, both parties should receive a copy of these changes and keep on their records. The Employer should ensure that all Employees understand the above mentioned, either through explaining in a language, or manner in which the Employee would understand.
It is the Employers responsibility to keep all record for a period of three years after the termination of the employment relationship.
For more interesting and up-to-date articles, please connect with us on social media!
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As in all contracts, the details of each party should be stipulated, such as the Employer’s name, address and the Employee’s full name, surname, ID number and address should be clearly visible in said contract.
Further information such as: where would the Employee report for duty; the date the Employment contract commenced; days and hours that the Employee is required to work; the Employee’s rate / wage and method of payment; will the employee be eligible for overtime; any other cash payments, payments in kind; how frequent will he/ she receive payment and if any deductions will be applicable, all of these factors would be agreed upon and documented.
Further the Employee would need to know how the company allocates and approves leave; what notice period the Employee should give; or when termination of the Employment relationship would be; does the business belong to/ or have a council /sectorial determination and if there are any additional documentation that forms part of the contract of Employment.
These particulars should be revised and updated on a regular basis. Should any of the above-mentioned change, both parties should receive a copy of these changes and keep on their records. The Employer should ensure that all Employees understand the above mentioned, either through explaining in a language, or manner in which the Employee would understand.
It is the Employers responsibility to keep all record for a period of three years after the termination of the employment relationship.
For more interesting and up-to-date articles, please connect with us on social media!
Instagram: @joblaw_
Facebook and LinkedIn: Joblaw (Pty) Ltd
4th Nov 2022
Paying My Employees: What Information of Theirs do I Need?
One of the smaller details sometimes overlooked by Employers is Section 33 of the BCEA.
This is sometimes only realised when it is too late, and the department of labour is knocking on your door with an inspection.
Thus, we believe it is a necessity to inform our clients and potential clients on what is required of them as employers.
When Employers make payment towards their employees, they are required to provide the employee with the following in writing,
- The Employer name and Address.
- The Employee occupation and Name.
- The period of which the payment is due.
- The remuneration owing to the employee.
- The deductions made to such amount.
- The Actual amount paid to the employee after all deductions.
Section 33 then sets out additional requirements, if applicable, as followed:
- The employee remuneration rate and overtime rate.- Hours worked on a Sunday and/or Public Holiday.
These documents must be supplied to the employee on their normal working days at an agreed place and on the day, payment is made.
Section 33 of the BCEA is quite specific in what it requires, however many companies have failed to meet the requirements of the labour inspector.
It is advised to consult with a professional to ensure compliance with Section 33 of the BCEA.
This article aims to provide general information and does not constitute legal advice. For more information contact 021 919 6418 OR erin@joblaw.co.za
This is sometimes only realised when it is too late, and the department of labour is knocking on your door with an inspection.
Thus, we believe it is a necessity to inform our clients and potential clients on what is required of them as employers.
When Employers make payment towards their employees, they are required to provide the employee with the following in writing,
- The Employer name and Address.
- The Employee occupation and Name.
- The period of which the payment is due.
- The remuneration owing to the employee.
- The deductions made to such amount.
- The Actual amount paid to the employee after all deductions.
Section 33 then sets out additional requirements, if applicable, as followed:
- The employee remuneration rate and overtime rate.- Hours worked on a Sunday and/or Public Holiday.
These documents must be supplied to the employee on their normal working days at an agreed place and on the day, payment is made.
Section 33 of the BCEA is quite specific in what it requires, however many companies have failed to meet the requirements of the labour inspector.
It is advised to consult with a professional to ensure compliance with Section 33 of the BCEA.
This article aims to provide general information and does not constitute legal advice. For more information contact 021 919 6418 OR erin@joblaw.co.za
