A potion for December
by Abrie Bronkhorst
The calendar year is at an end, but the work environment presents many challenges as it is grounded in human relations. Communication remains one of the keys to success in managing the environment and limiting friction, especially over December.
Three areas where friction can easily rear its head, are as follows:
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Year-end function
The festive season is in swing and several businesses are getting ready to end this year with a party. Employers can still hold employees accountable during such functions for any misconduct not normally permitted within the workplace. Regardless of whether the function takes place on the employer’s premises or not, alcohol is often served, which can create challenges for the employer as the consumption of alcohol can lead to misconduct by employees. Employees under the influence can damage working relationships, as well as the employer’s reputation.
For example, employees may drive under the influence after the function, or they may disregard health and safety provisions, which may lead to a claim for an injury on duty. The employer can be held liable for this as the employee attends the function as part of the performance of his/her duties. It is very important that employers take steps to ensure appropriate behavior at functions and inform employees about the following before the function:
- the level of professionalism expected at the function;
- that each employee is responsible for keeping his alcohol intake within legal and reasonable limits;
- that any misconduct by an employee before, during or after the year-end function will lead to disciplinary action against the employee.
Annual leave
Employers should take the following into account when dealing with annual leave:
- In terms of the Basic Conditions of Employment Act, an employee is entitled to 1 day of paid leave for every 17 days worked. This works out to 1.25 days of paid leave per month, or 15 working days of paid leave per year (if an employee works 5 days per week).
- The leave cycle is a 12-month period calculated from the date of employment and is renewed annually.
- Annual leave accumulates and can be carried over to the next leave cycle, but must be taken within six months of the new cycle.
- Annual leave is paid leave and the employee receives full payment during the leave period. The normal payment date can be modified by a payment agreement for this period.
- Public holidays do not form part of annual leave and are additional. Please note that 27 December 2022 has been declared a public holiday by the president and must therefore be treated accordingly in terms of compensation and time off.
- Leave may not be exchanged for compensation. Leave may only be paid out on termination of employment.
Employees should follow a process where a leave form is completed as an application for leave. When an employee applies for leave, the employer has the right to refuse leave due to operational requirements. If an employee’s application for leave has not been approved by the employer and the employee decides to still take the leave, the employer can take disciplinary action against the employee, as the employee is then absent without permission
The employer also has the right to determine a specific period when employees must take the majority of their annual leave to avoid employees taking leave during the business’s busiest times. Take care to communicate this specific period to employees early on to ensure that all employees have enough leave, especially when the business closes for a period. If employees have not accumulated enough leave, unpaid leave must be taken for this period.
We recommend that employers indicate each employee’s available leave, as well as a record of leave taken, on the payslip to avoid any uncertainty. It is important that the employer keeps a record of leave taken as proof should a dispute arise.
Bonusses
A common misperception in the workplace is that employees are entitled to an annual bonus. An employee can only claim a bonus when it is so prescribed by legislation applicable to the specific sector. Bonuses are therefore solely at the employer’s discretion. It is extremely important that the employer confirms this in writing so as not to create an expectation with the employee that bonuses form part of his/her employment conditions.
There are different types of bonuses for which an employee may qualify in the workplace:
- A thirteenth cheque
This type of bonus is considered a condition of employment. As a result, the employee has the expectation of a thirteenth cheque every year as part of his/her compensation package. If an employer has already granted a year-end bonus to employees for some time, this may also create an expectation among employees to receive bonuses every year as a matter of practice. If the employer wishes to terminate or amend the practice of paying a thirteenth cheque, the employer must consult with the employee and reach an agreement.
The employer may not amend the terms and conditions of employment unilaterally, as this can be regarded as unreasonable and unfair. The employee may refer the matter to the Commission for Conciliation, Mediation and Arbitration.
- Performance bonus
The performance bonus is awarded at the employer’s discretion following an employee’s individual work performance during a certain period. This bonus can be paid monthly or annually and can be forfeited if the employee’s work performance is not up to standard. It is important that the employer establishes clear standards in terms of quality and quantity that employees must comply with. Employers must also continuously evaluate and assess employees so that any poor job performance can be immediately identified and addressed.
- Production bonus
The production bonus is awarded at the employer’s discretion following a division or group’s production measured against production goals as set by management. It is important that the employer establishes and communicates clear targets or objectives to employees. When an employee alleges he/she is entitled to a bonus, the onus rests on the employer to prove the contrary. It is important that an employer continuously evaluates the employee’s work performance, and keep record of these assessments.
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