Frequently Asked Questions
I have resigned and have 25 days leave due to me. Can I take this leave during my notice period ? I have told my employer I want to take my leave in my period of notice but he refuses.
Section 20 (5) (b) of the BCEA states clearly that "the employer may not require or permit an employee to take annual leave during any period of notice of termination of employment.”
This means that, in terms of the act, an employee is prohibited from taking leave during his period of notice on resignation, and the employer is prohibited from forcing the employee to take leave during any period of notice.
We have an employee who has given us four weeks notice, but the employment contract states one calendar month - what can we do ?
The conditions of the employment contract are lawful, provided that the period of notice applies to the employer - namely that if the employee should be retrenched or dismissed with notice, then the employer is obliged to also give the employee one calendar months notice. If the condition applies to both parties, then the employer can force the employee to comply with the condition. Should the employee refuse and simply walked out, the only thing the employer can do is sue the employee for damages in terms of breach of contract.
We have a clause in our contract stating that employees who earn over the threshold amount as determined by the Minister, are exempted from the provisions relating to maternity leave. The clause states further that the company will stipulate what period of maternity leave they are prepared to allow. Is this legal?
This is not correct. Section 25, which sets out the provisions for maternity leave, he is not stipulated as an exclusion in the Ministerial determination. All employees, irrespective of earnings, are entitled to 4 months unpaid maternity leave in terms of the BCEA. There is no legal obligation on any employer to pay the employee a salary or portion of salary during a period of maternity leave, but the employer is legally obliged to allow the employee the full period of four months as a minimum.
We have an employee who has exhausted all their sick leave for this three-year cycle, as well as the annual leave for the current cycle. The employee now needs to go into hospital for an operation and will be off work for six weeks. Are we obliged to pay him ?
Unfortunately, if all sick leave has been exhausted as well as all available annual leave in the current cycles, and the employee requires further sick leave, there is no legal obligation on the employer to pay the employee and the additional requirement may be treated as unpaid leave.
We have a clause in our employment contract stating that if an employee is off sick on a Friday or a Monday, or on the Friday and a Monday, or if he is off sick the day before the day after a public holiday, he must produce a sick note, otherwise be time-off will be treated as unpaid leave. Is this condition legal?
Unfortunately, it is not a lawful condition. The BCEA states clearly in the section 23 that if an employee has been absent from work for more than two consecutive days (which means three days or more) then he is obliged to produce a medical certificate. A Friday is 1 day only, and a Monday is 1 day only, and the same applies to the day before and the day after a public holiday - those days each constitute only 1 day, and therefore no medical certificate is required. However, if the employee is absent on more than two occasions - even if the occasion is 1 day only - during the same eight-week period, then on the third occasion of absence during that eight-week period the employer is entitled to insist on a sick note, and if it is not produced, the employer is not obliged to pay the employee for the time-off.
We have an employee who has resigned and walked out on 24 hours notice. He has already been paid his salary, but he is owed 15 days leave. Can we withhold his leave pay in lieu of notice?
Unfortunately you are not permitted to do that. Section 40 of the BCEA makes it clear what payments must be made to an employee upon termination of employment, and this includes outstanding leave pay. The only way this can be overcome is if it is inserted into the employment contract as a condition of employment that should the employee contravene the provisions regarding the period of notice required, then the employer would be entitled to withhold salary or leave pay in lieu of notice. However, you would not be entitled to now rush out and amend all your existing employment contracts. If you wish to do that, it can only be done by consultation with your existing employees.
We have an employee who has been with us for 12 months. We sent him on a training course when he joined us, which cost us R8000. He has now resigned - can we make him pay us back for the cost of the training course?
If no (preferably written) agreement was entered into before the employee embarked on the training, to the effect that he would be liable to repay you for the cost of the training should he leave your employment, then there is nothing you can do.
You can't force such a condition on him now because it is after the fact. The conditions attached to the training should have been made clear to the employee in an agreement, prior to the training. In that way, the employee would have been given a fair opportunity to refuse the offer of training should he have felt that any of the conditions attached to it were unacceptable to him for whatever reason.
We have an employee who has just resigned and accepted employment with a competitor. Our line of business is highly competitive we need to protect ourselves in some way. Can we force him to sign a Restraint of Trade Agreement now that he has resigned?
Unfortunately not. It is now for too late, and the horse has escaped. I might add that the employee would indeed be very stupid to sign such an agreement after he has resigned. You cannot force any employee to sign anything that he does not wish to sign.
Payment of remuneration.
An employer is obliged to pay remuneration within 7 days after the completion of the period for which the remuneration is payable. If there is a particular pay date stipulated in any contract of employment or other agreement, then the employer is obliged to adhere to the conditions stipulated. An employer is obliged to provide an employee with a proper payslip on each payday.
Deductionsns from remuneration.
Generally, an employer may not make any deductions from an employee's remuneration without the written consent of the employee, except for statutory deductions such as PAYE, UIF, any deduction required by Court Order, or deductions for retirement fund contributions or medical aid contributions.
Overpayments of remuneration to employee
If an employer inadvertently or erroneously calculates the remuneration due to an employee, which results in an overpayment of remuneration to the employee, then the employer is entitled to recover such overpayment from the employee.
Termination of Employment
During the first six months of employment, the statutory notice period is 1 week. During the second six months of employment, it is 2 weeks, and thereafter it is 4 weeks. These periods may be varied by the employer in a contract of employment or agreement, provided that the same notice period agreed upon also applies to the employer. For example, the employer may require the employee to give one calendar months notice upon resignation.
If the employer agrees that should the employee be dismissed with notice, then the employer will also provide the employee with one calendar months notice of dismissal. Then the provision for one calendar months notice in the contract of employment is lawful. However, if the employer does not so agree, then that the provision for one calendar months notice in the employment contract is unlawful, and that the notice period as stipulated in the Act will apply.
When can I give notice of resignation?
The Act stipulates that the notice of termination of a contract of employment must be given in writing. Therefore, when an employee resigns, he must tender his resignation in writing to the employer. The Act further stipulates that notice of termination of a contract of employment given by an employer may not be given during any period of leave to which the employee is entitled - meaning that the employer may not give an employee notice of dismissal or termination of contract while the employee is on annual leave, maternity leave, or family responsibility leave.
There is no provision in the Act which prohibits the employee from giving the employer notice of termination whilst the employee is on any period of leave to which he is entitled. The employer is permitted to give the employee notice of termination or dismissal whilst the employee is on sick leave. The employer may not insist that an employee must proceed on annual leave during any period of notice, and the employee is prohibited from taking annual leave during a period of notice.
Under certain circumstances, the employer may terminate a contract of employment without notice. There is no provision in the BCEA which entitles an employee to terminate a contract of employment by resignation, without notice. The exception to this may be where the employer has created an intolerable working condition, and the employee has made a decision to resign and leave the premises immediately, and register a dispute of constructive dismissal at the CCMA.
Generally, however, giving the employer 24 hours notice by an employee is unlawful, and should the employee act in that manner, the employer would be entitled to sue the employee for breach of contract.
Payment instead of notice.
Should an employee give notice of resignation, or should the employer give notice of termination of contract or dismissal, and the employer requires the employee to leave the premises immediately, the employer is still obliged to pay the employee for the full period of notice given by the employee.
Should an employee give notice of resignation, but the employee requests to leave the employment immediately, then the employer has the right to grant that request, but then the employer is not obliged to pay the employee for the period of notice given. The employer also has the right to refuse such a request from the employee.
What payments can I expect when I resign ?
Generally, upon resignation or dismissal, an employee is entitled to be paid the notice pay where applicable, salary up to last day worked, plus any outstanding leave pay. Bonuses are normally payable pro rata, but this will depend on the employer's bonus payment policy, and any other bonus payment agreements which may be contained in a contract of employment or collective agreement. Accrued retirement fund benefits will also become payable to the employee in terms of the rules of the fund.
In terms of retrenchment, the minimum severance pay is 1 week salary for every completed year of service. Severance packages are normally negotiated between employer and employee. The full statutory retrenchment processes are to be found in section 189 and section 189A of the Labour Relations Act.
Salary increases are not regulated by labour legislation, except in as far as may be provided for in any Main agreement or collective agreement, where provision is usually made for annual wage or salary negotiations. In the absence of any such agreement, salary increases remains a matter of mutual interest between employer and employee. There is no obligation on the employer to grant annual increases.
Generally, an employer may not deeply is an employer's salary. However this is subject to many different conditions. For example, the general principle is that an employer may not make unilateral changes to terms and conditions of employment (which include salary) unless the employee is first consulted on the proposed change, and agreement is obtained.
However, if an employee has been lawfully demoted for whatever reason, then obviously the salary applicable to the lower post will apply. There is no obligation on the employer to keep the employee on a salary applicable to a higher post than that occupied by the employee.
This sometimes happens where a sanction of demotion is applied in a disciplinary matter, as an alternative to dismissal. A demotion may also occur by mutual agreement in a case of incapacity - poor work performance - whereby it has been found that an employee is unable to properly perform in a certain post, but is able to perform at a lower level. As an alternative to dismissal, the employee can accept the demotion, but the lower salary applicable to the lower post will apply.
The employee has no legal entitlement to demand that the salary applicable to the higher post or the previously occupied post be applied.
Re-imbursing employer for training costs
Is an employee obliged to reimburse an employer for training costs incurred by the employer, when the employee resigns or is dismissed? The answer here is that should an employer spend money on training and employee, then the employer should enter into a written agreement with the employee before the training commences, to agree on the cost of the training, and to agree that should the employee resigns with in a certain period of time, or be dismissed through no fault of the employer, then the employee would be required to reimburse the employer for the training costs incurred.
If there is no such agreement, then it is implied that the employer is satisfied to spend the money on training the employee, without requiring the employee to reimburse the employer should certain circumstances arise.
If there is no such agreement, the employer is no legal entitlement to demand repayment of training costs purely on the grounds that the employee has now resigned - such requirements must be entered into by written agreement before the training commences. Another reason for this is that the employee must be given opportunity to refuse to undergo the training, and he may well do this if the training is to be very expensive, and the employee has no intentions of remaining in the service of that employer until he retires, but is merely using that employer as a stepping stone in his career path.
Restraint of Trade Agreements.
Strangely, Restraint of Trade Agreements are not regulated in terms of labour legislation, although such agreement is usually form part of the Contract of Employment. The employer will usually require an employee to sign a Restraint of Trade agreement where the employer feels it necessary to restrain the employee party or limit the employee party in his employment activities should he leave the service of the employer.
This requirement would arise where the employer needs to protect his economic interests, trade secrets, secret formulas, price lists, customer database information, and so on. In other words he needs to take certain action to ensure that such information will not fall into the hands of a competitor, should the employee leave his service and take up employment with a competitor.
Such agreement is usually prohibit the employee from taking up employment with a competitor, or supplier, or customer of the employer with in a certain geographical area or with in a certain radius of the employer's premises, for a certain period of time after the employee leaves the service of the employer.
A Restraint of Trade agreement needs to be reasonable in terms of the protection sought, and the applicable terms and conditions as to the geographical area and time period. Usually, in determining the legality and enforce ability of such an agreement, factors that will be considered include the nature of the restricted activity, the geographical area applicable, the period of time for which the agreement is applicable, and the particular interests which the employer is seeking to protect.
Employees often sign that these agreements at the start of employment, and usually they sign the agreement with at giving proper thought to the matter and without giving proper thought to the consequences of signing such an agreement. Usually, the rationale behind the signing is simply “ I signed the because I needed the job.”
The problem is that signing such an agreement for such an arbitrary reason will certainly have, in most cases, an adverse effect on the employee’s future employment with other employers, and on the employee's career advancement. Employees should never sign such agreements without first obtaining professional opinion, by consulting an attorney who specialises in the Law of Contract, to assess the agreement and give a professional opinion.
Re-location of Business.
My employer is re-locating the company from Pretoria to Johannesburg. I live in Pretoria.
Must the employer increase my salary to cover the extra cost of travelling from Pretoria to Johannesburg and back to Pretoria every day ?
Answer – there is no obligation on the employer to do this – it is a matter that must be negotiated between the employee and the employer. My employer is re-locating the company from Pretoria to Johannesburg. I live in Pretoria and if I have to work in Johannesburg, I will have a huge problem in fetching my children from the after-school care centre in Pretoria by 5 pm. Travelling from Johannesburg every day at 4.30 means I won’t get to Pretoria until about 6 pm or later. The after-school care centre closes at 5 pm, and they are not prepared to wait for me. In addition, it is simply not practical for me to arrive home at 7 pm or later every day, cook dinner, see to the kids etc.
What can I do?
In terms of labour legislation, the re-location of the business if probably for operational requirements. Since you are unable to now comply with the new operational requirements of the business, the employer would have to retrench you.
Harassment, intimidation, victimization.
It often happens that when an employer wishes to "get rid of" and employee, he adopts tactics that create extremely unpleasant or unacceptable working conditions, in hopes that the employee will resigned. It also happens sometimes when an employee has already resigned, and the employer is extremely annoyed because "the employee is ungrateful", or the employee "has left me in the lurch", and the employer is determined to exact revenge on the employee before they actually leave.
This may take many different forms - it could involve spreading malicious rumours about the employee or insulting them or degrading them, overloading them with work, continually picking on them, swearing at the employee, using foul and vulgar or abusive language towards the employee, and so on.
Whatever the case, it is unacceptable, and is a violation of the human rights of the employee and also a violation of the employee's right to be treated with dignity and respect. In fact, employers have a duty to protect their employees from harassment as opposed to subjecting employees to harassment.
The employee should keep a note of all incidents, noting the date and time, what the nature of the incident was, and the names of any witnesses. The harasser should then be confronted and a formal demand written made to the harasser that he immediately cease the unacceptable behaviour. The employee can state that should the harasser not cease the harassment, the employee will refer the matter to the CCMA for conciliation, and if that fails, the matter will proceed to the Labour Court.
Such correspondence will usually resolve the issue, because the harasser knows that he is out of line, and that his actions are unacceptable.
Everything you need to know about leave
Annual leave entitlement
The Act states that the provisions for annual leave do not apply to an employee who works less than 24 hours per month for an employer, and also these provisions do not apply to leave granted to an employee in excess of the entitlement allowed in terms of the BCEA. An annual leave cycle is a period of 12 months with the same employer, calculated from the employee's commencement of employment, or from the completion of that employees previous leave cycle.
The entitlement is 21 consecutive days annual leave on full remuneration, in respect of each annual leave cycle, and if an employee works a five-day week then this is equal to 15 working days, or if the employee works a six-day week then it is equal to 18 working days. In other words, whatever number of working days falls within the 21 consecutive days, is the number of working days on full pay that the employee must be granted for annual leave purposes.
Calculation of accrual of leave – 1,25 days per month or 1,5 days per month.
If the employee is working a five-day week, then the annual leave will accrue at the rate of 1,25 days per month, and if the employee is working a six-day week then the annual leave will accrue at the rate are of 1,5 days per month.
Calculation of accrual of annual leave – 1 hour for every 17 hours worked .
An alternative method of calculating annual leave has been provided for in the Act, and it would seem that the intention of the legislator, in providing this alternative method of calculation, was to provide for an easy means of calculating the annual leave for temporary employees, or fixed term employees.
This method makes provision that the annual leave may be calculated on the basis of one hour of annual leave on full remuneration for every 17 hours on which the employee worked, or was entitled to be paid, or it can be calculated on the basis of one day annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid.
This method of accrual may only be applied by agreement with the employee. If there is no such agreement, then the employer is obliged to apply the accrual at the rate are of 1,25 days or 1,5 days monthly, as the case may be.
Public holidays falling during a period of annual leave.
Should a public holiday fall during a period whilst an employee is on annual leave, and the public holiday falls on the day on which the employee would ordinarily work, then the employee is entitled to an extra day annual leave for each such public holiday.
When may annual leave be taken?
The employee is entitled to take whatever leave he has accumulated in an annual leave cycle, on consecutive days. This means that if an employee has, for example, accumulated 11 days during an annual leave cycle, he is entitled to take those 11 days consecutively, and the employer may not refuse him permission to take those 11 days consecutively.Annual leave not taken during an annual leave cycle is automatically carried over to the next annual leave cycle, unless there exists any agreement to the contrary.
Section 20 (4) BCEA (Employer forced to grant leave)
Should the annual leave be carried over from one cycle to the next, and the employee has still not taken his annual leave from the previous cycle within six months of the new cycle, then the employee can demand to take that annual leave from the previous cycle, and the employer may not refuse such permission.
This is the only condition under which an employer is forced to grant annual leave upon request by the employee. The employer may not require (force) or permit (allow) an employee to take annual leave during any other period of leave to which the employee is entitled.
This means for example, that if an employee is on annual leave, and he falls ill during that period of annual leave, he can visit the doctor and if the doctor certifies that he is unfit for work for a certain period of time, then upon that employees return to work from annual leave he can hand the medical certificate to the employer, and the employer must credit that employee’s annual leave with the number of days sick leave, and debit the employee's sick leave.
This also means that if an employee has sick leave days available to his credit, the employer cannot force the employee, nor can he allow the employee, to utilise annual leave instead of taking sick leave.
Annual leave during a period of notice.
The employer may not force and employee to take annual leave during any period of notice, and the employee is prohibited from taking annual leave during any period of notice. Who decides when annual leave can be taken? Section 10 makes provision that the employee and the employer must agree on when annual leave can be taken, and if there is no agreement, then annual leave is taken at the time to suit the employer.
Can I exchange may annual leave for cash?
The employer is prohibited by section 20 (11) from paying an employee for annual leave except upon termination of employment.
Annual leave and shutdown.
Many employers have a shutdown period over December. If this is the case, the employer is entitled to stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee utilize his annual leave at another time during the year, then the shutdown period will be treated as unpaid leave.
Sick leave entitlement
The sick leave entitlement is the number of days that an employee would normally work during a six week period, in every three-year cycle, calculated from the first day of employment. Therefore, if an employee works a five-day week, then six weeks would equate to 30 days, and the employee would therefore be entitled to 30 days sick leave on full pay in every three-year cycle.Sick leave is not 10 days per year - sick leave is 30 days per three years. The employer may not restrict an employee to taking only 10 days sick leave per year.
During the first six months of employment, the entitlement is 1 day paid sick leave for every 26 days worked, which amounts to approximately 1 day sick leave in every 5 weeks. On the first working day of month number 7, the balance of the 30 days kicks in and is available to the employee. Therefore if the employee took no sick leave during the first six months of employment, then on the first working day of month number seven that employee would have 30 days sick leave available to last him for the balance of 2 ½ years remaining in his first 3-year cycle.
If the employee took say 4 days sick leave during the first six months of employment, then on the first working day of month number seven, that employee would have 26 days sick leave available to last him for the next 2 ½ years.
This amount can be used by the employee at any time during the next 2 ½ years, or three years, as the case may be, but when it is all used up then of course the employee has no further sick leave available until the start of the next 3 year cycle.
If the employee, for example, uses up all his available sick leave in month number 8 of the cycle, then he has no sick leave left until the commencement of the next cycle. Similarly, if the employee uses up all his available sick leave in month number 8, and then in month number 9 he resigns, the employer may not claim back any sick leave from that the employee. Any sick leave remaining to the credit of the employee at the end of a sick leave cycle is forfeited, and is not carried over to the next leave cycle.
Any sick leave remaining to the credit of the employee upon termination of the employment agreement by either party, is forfeited and the employee is not entitled to receive any payment for any sick leave days outstanding to the employee's credit.
An employee who is off sick for more than 2 consecutive days (in other words, 3 days or more) is required to produce a medical certificate signed by a medical practitioner or any other person who is certified to diagnose and treat patients, and who is registered with a professional council established by an Act of Parliament.
In other words, a medical certificate signed by a clinic sister or traditional healer is not acceptable. If the employee does not produce the required medical certificate as above, then the employer is entitled to treat the period of absence as unpaid leave, and the employee is not entitled to request that it be taken as paid annual leave.
It is unlawful for an employer to insist that an employee produce a medical certificate for an absence on a Friday, or on a Monday, or on the Friday and the Monday, or for and absence on the day before or the day after a public holiday.
If an employee is absent on more than two occasions (even if only for one day) during the same eight-week period, then for further absence, the employer is entitled to insist on a medical certificate, even if the absence is for only one day, and if it is not produced, then the employer is entitled to treat that absence as unpaid leave.
Injury on duty and sick leave.
If an employee is unable to work because of an accident or occupational disease, as defined in the Compensation for Occupational Injuries and Diseases Act, then any period of absence is not taken from ordinarily sick leave, unless there is no compensation payable in terms of the Act.
Maternity leave entitlement
Maternity leave is for months unpaid leave. The maternity leave should commence one month before the expected date of birth of the child, and that the mother may not return to work for six weeks after the birth of the child. These periods may be varied upon written permission from a doctor or midwife.The Act does not stipulate at what stage of the pregnancy the employee is obliged to inform the employer of her pregnant condition.
The Act stipulates only that the employee must notify the employer in writing of the date on which the employee intends to commence maternity leave, and the date on which the employee intends to return to work.
The Act stipulates further that the above a written notice must be given to the employer at least four weeks before the commencement of the maternity leave. An employer is obliged to keep the employee's job open, and no employee may be dismissed on grounds of pregnancy, or for any reason in relation to pregnancy or intended pregnancy. Any arrangements between the employer and employee regarding payment of salary or benefits during maternity leave, remains a matter between employer and employee and has nothing to do with any provision of the Act. The employee must inquire at the Department of Labour regarding maternity benefits payable in terms of UIF.
Family Responsibility leave
Family responsibility leave is presently an allowance of 3 days on full pay per year, and if the employee does not utilise the family responsibility leave during any 1 year, then any part of the allowance remaining at the end of the year is forfeited and is not carried over to the next year. Family responsibility leave is available only to employees who have been in employment with the same employer for longer than 4 months, and who work more than 4 days per week for that the employer.
Family responsibility leave may be used when the employee's child is born, when the employee's child is sick, or upon the death of the employee's spouse or life partner, or the employee's parent, adoptive parent, grandparent, adopted child, grandchild or sibling. An employee is entitled to take family responsibility leave as a ½ day, if that is all that is required. The employer is entitled to ask for proof of the event for which the family responsibility leave is sought, such as a medical certificate or death certificate. Family responsibility leave may not be claimed for any reason other than the reasons stated above.
There is no provision in the BCEA which entitles an employee to take unpaid leave. Unpaid leave is referred to in the Act only in terms of what the employer is entitled to do when an employee’s sick leave or annual leave has been exhausted - the employer may then allow (or require) the employee to take unpaid leave. However, there is no provision in the Act that allows an employee to demand that he/she be permitted to take unpaid leave.
Very simply, in labour legislation there is no such thing as study leave - it does not exist. Therefore, if the employee has such a requirement, he must apply for paid annual leave in accordance with the employer's annual leave policy.
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