CCMA Information

Rules and regulations, policies and procedures, more rules, another rule to shut this door, another rule to shut that door, and on it goes.

Employers are faced daily with problems from employees - there is no doubt about that. Employing people, and having them toe the line, is becoming a minefield. But it does seem that, more and more, employers are realising the value of an employment contract as opposed to no contract at all.  The days when " if it is not in writing, then it does not exist" are certainly over.


Employers are now resorting to compiling a proper contract of employment - and placing into that contract, all the necessary requirements to bind the employee. It is even becoming more necessary now to embody company policies and procedures into the contract - not all of them, perhaps, but certainly the more important ones - such as the rules on attendance, sick leave usage, annual leave, even the Disciplinary Code - the rules on family responsibility leave and maternity leave as well.


It certainly is a big step forward to incorporate such matters into the contract of employment - because when that is done, any transgression is then not merely a breach of company policy - it is also a breach of contract - which gives the employer much more clout.


Employers should realise that employees are becoming wiser and wiser by the day - employees are taking great strides to improve their knowledge of labour legislation. Employers would be shocked if they discovered just how many of the employees subscribe to the many Internet labour legislation newsletters available from different Internet-based labour law practitioners and legal practices.


Employers would also be shocked to discover just how many of the employees actually subscribe by paying a subscription fee to these web sites. I know this, because I can tell you that on our web site we have a " free advice facility". On this facility, I receive anything up to 150 e-mails daily - each one asking questions, and I can tell you that at least 85% to 90% of those e-mails are from employees - not from employers.


Employers - get wise! Your employees certainly are. It has come to me via the grapevine that employers are now taking steps to avoid the daily phenomenon of the employees walking out of the employment on 24 hours notice. Employees somehow  have got a false notion that " resignation with immediate effect" or 24 hours notice is quite legal. I don't know where this notion comes from, but it certainly is not legal.


In order to try and overcome this problem, I hear that with new employees, some employers are embodying into the employment contract, a clause stating that for the first 10 months of employment, the employee authorises the employer to make a deduction of 10% of the employees goes remuneration in money, and place this amount in an interest-bearing account. After 10 months, the employer now holds one month gross remuneration.


In the employment contract, the employee agrees that should he breach the terms and conditions of employment regarding notice of termination, the employer is entitled to apply the months salary so deducted, including all the interest, as payment in lieu of notice. If the employee resigns normally, then the amount held, plus the interest, is paid out to the employee.


The employers also include a clause stating that nothing embodied in the above agreement prevents the employer from instituting legal action for breach of contract against the employee. Employers whose contracts require two or three months notice deduct the amount for 20 or 30 months if required. Is it legal ? Well, there is certainly nothing in present labour legislation prohibiting this practice. And, as employers so rightly say, if the employee wants the job, then he  will agree to it.


Also via the grapevine, I have heard that other employers, for all new employees, are stipulating that the date of payment for remuneration will be the 7TH of every month. This is quite legal, in terms of section 32(3)(a) of the Basic Conditions of Employment Act. The rationale behind it is this - that an employee who obtains other employment, will usually be required to commence the employment on the 1st of the month.


The employee will be reluctant to simply walked out on 24 hours notice, because he will not receive the salary for the previous month until the 7th of the following month. This rather puts a hindrance on the employee simply walking out - because the employer will certainly not pay him the previous months salary, and such a condition is also embodied into the employment contract - the employee agrees to this in writing. Withholding the salary from the previous month may not be strictly legal - but employers are doing it anyway.

So there it is - some food for thought - this time to assist employers.

If assistance is needed to assess employment contracts, or assistance on policies and procedures, or how to embody these in a contract of employment, [email protected]


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