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Can You Withhold Remuneration Due To An Employee Who Gives 24H Notice

Employment Law , , , ,

The Basic Conditions of Employment Act sets out minimum requirements to notice period(s) that must be adhered to by 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 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.

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Employee Status: Commission-only Employee

Employment Law , , , ,

Some questions linger with regards to the legal employment status of an employee who is remunerated on a 100% commission basis, especially during the COVID-19 lockdown. The question of whether a commission-based employee is considered an employee is a prevalent one, especially in the South African employment environment where many employers try to circumvent he Labour Relations Act (LRA) in how they describe persons who perform services to their business. (Also read: “The Perpetual Independent Contractor,” 12 March 2020.)

According to Section 1 of the LRA, an employee is defined as:

Any person, excluding an independent contractor, who works for another person, or for the State, and who receives, or is entitled to receive, any remuneration, and any other person, who in any manner, assists in carrying on or conducting the business of an employer.

In addition, Section 83A of the Basic Conditions of Employment Act states that a person is presumed to be an employee of any other person to for whom they work or to whom they render services until the contrary is proven, regardless of the form of contract, if one of the following factors are present:

  • the way in which the person works is subject to the direction or control of another person
  • the person’s working hours are subject to the control or direction of another person
  • where a person works for a business or organisation, the person is a part of that business or organisation
  • the person has worked for another person an average of 40 hours per month for the preceding 3 months
  • the person is economically dependent on the person for whom they work or renders services
  • the person is provided with tools or equipment with which to perform the work or services by the other person
  • the person only works for or renders services to 1 (one) person,

These factors are referred to collectively as the “Section 83A Presumption.” This presumption is however not applicable to person who earn above the threshold of R205 433.30 per year, as per section 6(3) of the Basic Conditions of Employment Act.

A commission-only employee is a person who derives their entire income from the commission they earn on the work performed or services rendered to another person.

Commission-only employees typically have flexible working times and the way their work is performed, or services rendered may be left to the employee’s discretion and are not usually controlled by the employer.  The BCEA does not, however, set a required minimum time that an employee must work and only provides for limits on work time in terms of chapter 2 of the Basic Conditions of Employment Act.

Considering the application of the Section 83A Presumption, a commission-only employee will likely meet the basic requirements to be deemed an employee. Therefore, employers must ensure that commission-only employees are provided the minimum rights as per the Basic Conditions of Employment Act.

In terms of the COVID-19 lockdown, it is important to keep in mind that according to the National Minimum Wage Act (NMWA) of 2018, all commission based employees are legally entitled to receive at least the minimum wage and the commission payment in terms of their agreement with the employer. Section 3 of the NMWA provides that the laws relating to minimum wages apply to all employees and their employers.  This means that every employee is entitled to receive no less than the national minimum wage. The Act takes precedence over any contrary provision in any contract of employment and cannot be waived. Thus, commission-only employees are entitled to some form of income during this lockdown whether from mandatory paid annual leave or through the COVID-19 Temporary Employer/Employee Relief Scheme (TERS).

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COVID-19: Work during the lockdown

Employment Law , , , ,

Since the start of the national lockdown in response to the spread of the Coronavirus, and in an effort to limit the occurrence of the COVID-19 illness it causes, the question of whether or not an employee in an essential service can be instructed to work during this time has persisted. This question has now been extended as some call centres and mines are permitted to operate after the announcement of the extended lockdown regulations and amendments by Minister Nkosazana Dlamini-Zuma on 16 April 2020.

The short answer is: Yes

If you are an employee, as defined by Section 213 of the Labour Relations Act (LRA) of an essential service provider (whether you are an essential service provider or work in a supportive role to an essential service provider) or of a company providing essential services as gazetted by government (including amendments) that is permitted to work during this time then an employer may require an employee to work.

Section 213 of the LRA defines an Employee as:

“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer, and “employed” and “employment” have meanings corresponding to that of ”employee.”

Further, the provision includes for the services provided by individual (ordinary citizen) employees during the lockdown that are essential to the operations of the essential service provider. Such employees may include, but are not limited to, support or administrative staff.

Caveat

Ordinary citizen employees, employed as support or administration staff, may well be in breach of their employment contracts if they refuse to work during this time, however as the national lockdown was declared in order to decrease the spread of an infectious disease in COVID-19, they may have a justifiable defence against disciplinary action taken for absence from work where no alternatives were considered.

An employee may, in terms of the Basic Condition of Employment Act, Section 20(10), request to take their annual leave if in accordance to the agreement between the employer and the employee. However, section 10 makes provision that both the employer and the employee must agree on when annual leave is taken and where there is no agreement the annual leave must be taken at a time that suits the employer. Legally, an employer may thus reasonably deny an annual leave application.

Conversely, should the employee refuse to report to work at an essential service provider during the lockdown for fear of contracting the COVID-19 illness, the employer may agree to grant the employee permission to be absent from work by requiring the employee to take annual leave during this time. Should an employee have no annual leave available, s/he may be permitted to take unpaid leave.

Health and Safety

The Occupational Health and Safety Act, No. 85 of 1993 requires every employer to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of their employees. It is not, however, the sole responsibility of the employer to ensure the health and safety of the working environment. Employees share this responsibility and any risks or dangers must pro-actively and in good faith be addressed through communication and cooperation between both parties.

This means that an employee has a duty to inform his or her employer of their COVID-19 status, as well as the risk of having been exposed to a COVID-19 positive person in order for the employer and the government to take the appropriate measures. An employer may obligate an employee to be tested for COVID-19, and under the regulations of the National Disaster Act, the employee can legally be forced to comply.

However, it is critical to keep in mind the regulations under the Disaster Management Act 2002, section 11(5), that it is a criminal offense to “publish a statement through any medium with the intention to deceive about COVID-19, anyone’s COVID-19 infection status …” The threshold for this offense is the ability to prove that the statement was made with “intention to deceive”.  A false claim by an employee to have been infected by COVID-19 in order to not report to work have yet to be tested under law but caries with it the risk to an employee of more than a disciplinary sanction.

Travel and Transport

The employer must provide every employee required to work during the lockdown with a permit to travel to and from work. Employees travelling to and from work must at all times carry this permit with them, along with photo ID. Employees who do not have this permit may refuse to travel to work.

Should an employee not have access to transport to be able to attend to work due to the prohibitions placed on public transport during the lockdown, the employer is responsible for making the necessary transport arrangements for the employees in accordance with the regulations stipulated for all forms of public transport.

 

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COVID-19: Updated and amended lock down regulations 02 April 2020

Uncategorized , , ,

Updated and amended regulations to address issues regarding transport, essential goods and the tracking of the coronavirus was signed and gazetted by Minister Nkosazana Dlamini-Zuma on 02 April 2020.

The changes include:

Funerals

  • Provision for certain individuals to be allowed to travel between provinces, metropolitan areas and districts for the purpose of transporting mortal remains for burial.
  • A process by which persons who wish to travel between provinces, metropolitan and districts to attend a funeral or cremation can obtain a permit, provided they are:
  • The spouse or partner of the deceased.
  • Children of the deceased, whether biological, adopted or stepchildren.
  • Children-in-law of the deceased.
  • Parents of the deceased whether biological, adopted or stepparents.
  • Siblings, whether biological, adopted or stepbrother or sister of the deceased.
  • Grandparents of the deceased.
  • Persons closely affiliated to the deceased.

Tracking

  • The creation of a confidential national database that will allow for the tracing for people who has, or who have been in contact with someone who has the coronavirus.
  • The database will collect personal information on persons when they are tested.
  • Government may also request information from electronic communications service providers such as mobile networks and ISPs, including location and movement.
  • The database will include (but is not limited to) the following information:
  • First name
  • Last name
  • Identity/Passport number.
  • Residential address.
  • Work address/Other addresses where they could be located
  • Cell phone number
  • Covid-19 test results
  • The personal details of all known or suspected contacts of a person who has tested positive for the virus.

Spaza shops and informal traders

  • Grocery stores and wholesale produce markets, including spaza shops and informal food traders, may operate but must obtain a permit from a municipal authority to operate.

These changes are gazetted in the Government Gazette 43199 on 02 April 2020, please follow the link for the full publication.

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