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

How to determine if an employee is under the influence

In general, employers can consider the following symptoms in order to determine whether an employee is under the influence of alcohol:

• Red and bloodshot eyes with enlarged pupils;
• Slurred and incoherent speech;
• Change in behaviour;
• Staggering, i.e. the employee is disoriented;
• Delayed reaction and coordination;
• Breath smells like alcohol.

How to act when an employee is under the influence:

1. Call the employee aside, preferably to an office. Ensure that a witness is present.
2. Determine whether the employee is under the influence. Request the employee to blow into an alcohol tester. If you do not have such a device, you can take the employee to a physician for blood tests to determine his/her alcohol level.
3. If none of these methods are available, or if the employee refuses to give his/her cooperation and permission, it is vital to record his/her behaviour. Ask witnesses to also record their observations, which must be in writing.
4. Send the employee home for the rest of the day, without pay.
5. Follow the correct procedure as per your disciplinary code. Keep in mind that the sanction given must be appropriate in relation to the type of work performed by the employee.

Disciplinary hearing

If a disciplinary hearing is held, it is important to follow the correct procedure, to ensure fair procedures and substantive fairness. In labour legislation the burden of proof weighs lighter than in criminal cases. Therefore the employer only has to prove on a balance of probabilities that the employee was under the influence of alcohol during working hours. During the disciplinary hearing all witnesses that observed the symptoms must be present to testify. Alcohol and drug offenses in the workplace are very serious offences and are the employer’s responsibility to address. If an accident occurs in the workplace and the employee was under the influence of alcohol or drugs, the employer will be held responsible if he/she failed to act against such an employee. To maintain discipline in the workplace, it must be applied consistently. Clear rules in the workplace are paramount in creating a working environment with limited conflict and increased productivity.

Alcohol abuse is a social problem common amongst many workers. When an employee is found guilty of being under the influence during working hours and admits to having a problem, it is the duty of the employer to establish if the cause of the substance abuse problem is related to working conditions in any way. If so, the employer should review the conditions if necessary. Furthermore the employer must assist the employee to undergo counselling and make time available for rehabilitation. This can be seen as unpaid leave without placing the employee’s position in jeopardy. Alcoholism is widely accepted as a disease and should be treated as such.

An alcohol policy

A policy informs employees of the rule/s in respect of a certain topic. The employer puts these rules in place in order 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.

The aim of an alcohol policy is to ensure that all employees are aware of the rules in terms of alcohol in the workplace and that corrective and progressive discipline is applied. The policy should be clear and stipulate the test procedure, e.g. a breathalyzer test for alcohol or a urine test for drugs. Through this policy the employer can also acquire the employee’s consent to undergo these tests. Alcohol and drug offenses in the workplace are very serious offences and are the employer’s responsibility to address.

How to implement a policy:

When a new employee is appointed, policies are implemented together with his/her employment contract. When employees are already employed, policies can be implemented in various ways:

• Have a meeting with all the employees to discuss the policy. Take note to complete a signed attendance register to prove that employees are aware of the policy.
• Circulate the policy via e-mail or per hand – take note to have proof of receipt.
• Display the policy on a communal notice board accessible to all employees, e.g. in a canteen, changing rooms, etc. where employees are sure to see it.

It is important that the employer must be able to prove that the employees are aware of the policy, especially when the employer intends to take disciplinary action.

According to the American Council for Drug Education:

• Nearly 3 out of every 4 substance abusers are employed;
• Substance abusers are five times more likely than other workers to injure themselves or co-workers and cause 40 percent of all industrial fatalities;
• Substance abusers raise costs and reduce profits;
• Substance abusers are also ten times more likely to miss work;
• Substance abusers are five times more likely to file a worker’s compensation claim;
• Substance abusers are 33% less productive.

The Employee’s responsibility:

A female employee is entitled to four consecutive months’ unpaid maternity leave, during which she can claim benefits from the Unemployment Insurance Fund (UIF). Maternity leave may commence four weeks prior to the expected due date, or any other date as determined by a medical practitioner or midwife. For at least six weeks after the birth of a child, the employee may not work, unless a medical practitioner or midwife certifies that the employee may return to work. In the event of a miscarriage in the third trimester or in the event of a still birth, the employee is entitled to six weeks’ maternity leave.

It is also the employee’s responsibility to:

• notify the employer within a reasonable time of the pregnancy, but no later than four weeks prior to the commencement of maternity leave.
• claim benefits from the UIF. She may apply at the offices of the Department of Labour, or she may register electronically and complete the documentation on the UIF website.

What is the employer’s responsibility?

Every employer has an obligation to create a safe working environment for all employees and an employer may not force or allow an employee to work under conditions that are dangerous for the unborn child or for a nursing mother. During a period of six months after birth, while the employee is nursing, the employer has to provide the employee with suitable alternative employment if there is a possibility that damaging conditions exist in the workplace that may have a negative influence on the employee’s health.

It is also the employer’s responsibility to:

• ensure that all UIF payments are up to date;
• provide the employee with the following information and documentation prior to the commencement of maternity leave, enabling her to proceed with her claim:
  • UI 2.7-form
  • UI 10-form
  • UIF registration number

Employers have the following questions:

• Can the employer calculate an annual bonus (if applicable) pro rata?
  In the Contract Cleaning Sector an employee is entitled to an annual bonus and an employer will have to pay the full bonus if the employee was on maternity leave, as pregnancy does not interrupt employment. If a partial bonus is paid because the employee was on maternity leave, it may be seen as unfair discrimination based on pregnancy.

• How does maternity leave influence an employee’s annual leave?
  The Basic Conditions of Employment Act states that an employee is entitled to 21 consecutive days’ annual leave. An annual leave cycle is a period of 12 months from commencement of the employee’s term of service or the completion of a previous leave cycle. The employee remains in the service of the employer during maternity leave and there is no interruption in service. Therefore the leave cycle is also uninterrupted and the employee is still entitled to her annual leave.

• Can male employees apply for maternity leave?
  Male employees are not entitled to maternity leave and can apply for family responsibility leave and annual leave, if available, when a child is born.

Be proactive:

We strongly recommend that employers act proactively and implement a policy and procedure to regulate conduct between the employer and employee in this regard. Ensure that the policy clearly outlines any additional benefits other than UIF as agreed upon, if applicable. The policy can also make provision for sufficient time for the employer to appoint and train a suitable person for the maternity leave period. A fixed term contract of employment may be used for this period.

To ensure that labour risk is sufficiently limited and managed, it is advisable to make provision for a clause in female employees’ contracts of employment that regulates maternity leave to prevent any uncertainty and disputes.

Please contact the LWO at 0861 101 828 | info@lwo.co.za | www.lwo.co.za for more information and/or advice in this regard. We are available 24/7.