The Basic Conditions of Employment Act (BCEA) makes provision for paid sick leave when the employee is too ill to perform his/her duties, or is incapacitated due to illness.  An employee is entitled to the number of days’ paid sick leave equal to the number of days normally worked in a 6 week period during a sick leave cycle of 36 months.  During the first 6 months of employment, an employee is entitled to 1 day’s paid sick leave for every 26 days worked.

Abuse of sick leave can have a huge impact on a business’s productivity and profitability.  To ensure that employees do not abuse sick leave, employers should implement clear rules and standards in the workplace regarding attendance, absenteeism and sick leave.

We advise employers to use the following guidelines and ensure that employees know:

• how and when to apply for any form of leave
• who to contact if they are ill, injured or have a family emergency
• how to contact that person (telephone, text message, e-mail, etc.)
• when they will be required to submit supporting documentation such as a medical certificate from a registered medical practitioner, or proof of a death in the family
• what consequences of non-compliance with the workplace rules will be (disciplinary action, unpaid leave, etc.)

It is also very important that the employer monitor work attendance and leave taken.  Do monthly reports to identify any possible patterns in terms of absenteeism amongst employees.  These patterns and trends are usually indicative of a more serious problem, for instance a chronic medical condition.

Contact the LWO at 0861 101 828 if you suspect an employee of abusing sick leave, to ensure that the correct procedure is followed.

What are the benefits?

• Saving time and money
  By recording all the necessary information on a payslip, employers save time by not having to explain every aspect of the employee’s wage.  The employer also saves money as every aspect of the employee’s wage and relevant deductions are carefully calculated.  This prevents overpayment, as well as ensuring the necessary deductions are made.




• Record keeping
  An employee must refer a dispute regarding remuneration to the Department of Labour or the Labour Court within 3 years.  The employer must therefore keep also keep these records for at least the same period.  Payslips keep record of information regarding the following:
  • Hours worked (ordinary hours, overtime, Sunday time, public holidays and other)
  • Deductions made (statutory, additional and other)
  • Periods of payment
  • Proof of remuneration received
  • Personnel details (address, job description, etc.)




• Minimising risk
  During an inspection by the Department of Labour, the labour inspector can request copies of employment contracts an payslips.  Up to date payslips not only minimises the risk of disputes and uncertainty between employers and employees, but also ensures that the employer complies with the relevant labour law applicable to the industry.

What information should appear on payslips?

• Employer’s name and address
• Employee’s name and occupation
• Period of payment
• Employee’s wage and wage rate
• Hours worked – ordinary hours, overtime, Sunday time and hours worked on a public holiday
• Any other pay arising out of the worker’s employment
• Deductions
• Employer’s registration number with the Unemployment Insurance Fund (UIF) and the employee’s contribution
• Action amount paid to the employee

We advise employers to manage labour risk proactively and also include the following on payslips:

• Leave taken and available leave
• Proof of receipt

An employer can only request an employee to work on a public holiday if agreed upon and may also exchange such a day with an ordinary workday at the employer’s discretion. That is why we advise employers to discuss this with the employee during the interview and also include it in the employment contract.

There are 3 scenarios for public holidays:

• The employee receives normal pay for the day if:
  • the public holiday falls on a normal work day and the employee does not work.
• The employee receives double the normal hourly wage for every hour of work performed on a public holiday.
• The employee receives his/her normal daily wage plus his/her hourly wage for each hour worked on the public holiday if:
  • the employee’s shift does not ordinarily fall on a public holiday.

We advise employers to include clauses in the employment contract regarding leave, work performed on public holidays, as well as a compressed working week.  Implement policies to ensure that all employees are aware of the rules in the workplace.

The vast amount of legislation that regulates labour relations in South Africa stresses how crucial it is for the employer to follow the correct procedure, especially when dismissing an employee.  Therefore you have to make sure you appoint the right person to start with!  Can you revoke an offer of employment?

How to appoint an employee

Dishonesty during the interview process

Often candidates are dishonest about qualifications, experience, or in certain cases a criminal record.  Sometimes employers only realise this after appointing the employee.  Dishonesty is a serious offence and although the employee was not in your service when he/she lied to you, there was intent to mislead to gain employment.  The employer can then proceed with a disciplinary hearing to prove that the person lied.

It is very important to call references and do the necessary background checks to make sure you appoint the right person. A previous employer can verify the applicant’s reason for leaving, as well as give more information regarding overall performance and abilities.  The employer can do a criminal and credit check with the applicant’s consent if this is compulsory for the position.

Legal requirements when appointing an employee

The most important step is the employment contract.  This is the basis of the relationship between the employer and the employee and states the terms and conditions as agreed upon in the interview.  This must be in writing and signed preferably before duties commence.

Make sure you use the correct contract for the type of position.  Should you use a permanent or fixed term employment contract?  Take note that it is illegal to disguise what is in fact permanent employment in the form of a fixed term contract.

What if you appoint the wrong candidate

Be proactive and include a probation period in the employment contract. A probation period is generally 3 to 6 months of evaluation to determine if the employee is suited for the job. If not, the employer can terminate the employee’s services subject to regular consultation. Without a probation period clause, the employer must follow the normal poor work performance consultation procedure which is timely and costly. The employer can under no circumstances dismiss an employee without following the correct procedure. All dismissals must be procedurally and substantively fair.

Make sure you do your homework to ensure you appoint the right person. Also add proactive clauses in the employment contract and always follow the correct procedures, especially with dismissal.

Here with a few tools to assist employers in managing labour relations in their businesses:

Registration:

Documentation:

• Employment contracts
  The employment contract is the basis of the relationship between the employer and the employee and states the terms and conditions as agreed upon. Terms and conditions of a verbal agreement cannot always be proven. Therefore, the written particulars of employment in the form of an employment contract creates clarity and certainty between the employer and the employee and diminishes the risk of disputes arising about these terms and conditions. An employment contract is vital as the most important document for the employer in managing labour relations.
• Displaying of legislation
  All employers must display the following legislation:
  • Basic Conditions of Employment Act
  • Employment Equity Act
  • Occupational Health and Safety Act (if you have more than 5 employees)

These Acts are easily displayed in the form of posters available for purchase at most employers’ organisations as well as the local Department of Labour.

• Personnel files
  Being organised will ensure that documentation regarding employees can easily be accessed when needed. A personnel file should consist of at least the following documentation: an employment contract, leave forms, payslips, disciplinary records such as warnings issued for misconduct, a copy of the employee’s identity document/passport/work permit, his/her personal information and contact details. It is very important to keep this information up to date. Personnel files should be kept for three years after termination of employment.
• Payslips
  Legislation requires all employers to issue employees with payslips when wages are paid. The following information must be displayed on a payslip:
  • Employer’s name and address
  • Employee’s name and address
  • Period of remuneration
  • Deductions
  • Overtime worked
  • Time worked on public holidays
  • Amount payable to the employee
  • Leave taken and leave available
• Leave
  By law, there are four types of leave: annual-, sick-, family responsibility- and maternity leave. Specifying the types of leave and the amount of days applicable to each in the employment contract ensures that the employee is informed of the amount of leave he/she is entitled to. We advise employers to implement a leave policy that stipulates how and when leave must be applied for, but take care that the policy is not less favourable than the applicable legislation which should be adhered to. It is important to make sure record is kept of each employee’s leave, a process facilitated by a leave policy. To ensure that leave does not infringe on operational requirements of the business, leave must be approved and approval is on the employer’s discretion. Policies and rules with regard to leave should be implemented in writing and explained to the employees to ease record keeping and limit absenteeism.

Rules

A policy informs employees of the rule/s in respect of a certain topic. The employer puts these rules in place to ensure the smooth and efficient running of his/her business operations. Policies are not underwritten by labour legislation, but define the employer’s own rules, which must be reasonable, for the workplace, e.g. smoking, leave, hygiene, the use of cell phones, etc.

The disciplinary code serves as a guideline for employers of what the appropriate sanction is for certain offences, referring to absenteeism, control at work, strikes and industrial action, disorderly behaviour, offences relating to theft or fraud and breach of confidentiality and trust and, offences relating to housing as part of an employment agreement. These sanctions may be adjusted depending on the circumstances and merits of each case as well as how progressive discipline should be applied. The disciplinary code also ensures that all employees are aware of the rules present at the workplace as well as the consequences should these rules be broken.

Procedures

By following the correct procedure, the employer can ensure fair labour practice and further minimise the risk of disputes. We advise employers to adopt procedures in cases of the following eventualities: disciplinary hearings, appeal procedures, grievance procedures, termination of service, appointment of employees and, injuries on duty. With procedures in place matters are dealt with effectively without delay. This way both the employer and employee will have a clear guideline with regards to procedural aspects.

In conclusion