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I am the going to deal this week with various questions that come up on a regular basis
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.
Deductions 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
Notice periods.
- 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.
Retrenchment
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
Miscellaneous.
Salary Increases
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.
Salary decreases.
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.
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