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The Purpose Of Using An Incident Misconduct Report

Employment Law , ,

Many businesses tend to overlook the importance of an incident / misconduct report form. This in turn leads to tricky situations where if prevented from the start, can be avoided. However, in order to initiate this pro-active response it is important to understand why they are so important and how Joblaw East London can help you and your business.

  1. Incident / misconduct report forms, form part of the investigation process and is not a warning in itself.
  2. The completed form, with both parties versions is to be sent to our offices and from there we assess the incident report and determine the appropriate action to be taken. If a warning or notice of hearing needs to be drafted from the incident report form, then we do such and send it through to the employer/manager for issuing on the specific employee/s

Progressive discipline forms a vital part of any disciplinary process. Regulation indicates that we need to have both the employer and the employee’s versions before a warning can be issued. If a warning is declared unfair, and such warning was used in the progressive discipline in the placement and subsequent dismissal of an employee, it could be found by the CCMA that the whole dismissal was unfair.

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Ensuring My Employees Understand Meal Intervals

Employment Law , ,

An Employer must give an employee who works continuously for more than five hours a meal interval of at least 60 continues minutes. An agreement in writing (Contract, or addendum/ annexure to contract) may reduce the meal interval, but not less than 30 minutes. An agreement may also dispense meal intervals if an employee works less than 6 hours On one day.

An Employer may request an Employee to work in their meal intervals if the duties cannot be left unattended and cannot be performed by another employee. But the Employer will need to remunerate the Employee for said meal intervals.

An Employer will also be required to remunerate an Employee if the meal intervals are in excess of 75 minutes, unless the Employee lives on the premises at which the work is performed, or workplace is situated

An Employer should encourage an Employee to take their meal intervals, as failure to do so may have risks to the Employer and Employee

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Ensuring My Employees Understand Family Responsibility Leave

Employment Law , ,

An Employee who has been working for the Employer for longer than 4 months and who works more than 4 days a week will be entitled to a total Of 3 (Three) Family responsibility leave days each leave cycle. (12 months)

This leave can be taken when there is a death Of the Employees direct family member

(Spouse, life partner, adoptive parent, grandparents, child, grandchildren or sibling) and/ or when the Employee’s child is sick.

The Employee is only entitled to a total Of 3 (three) such family responsibility leave days in a 12 month cycle and may take part Of / or the full day at any time, after notice has been given to the Employer.

Upon request from the Employer, the Employee should provide reasonable proof to the

Employer and only thereafter is the Employer required to pay the Employee for said days

Unused Family Responsibility leave does not accumulate and / or role over to the next year, any unused Family Responsibility leave, will lapse and the Employee will forfeit these days in the next cycle.

This article aims to provide general information and does not constitute legal advice.

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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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