Employers in the agricultural sector are regularly faced with the situation where an employed foreign national is no longer in possession of valid work documentation.  Employers are subsequently required to take the appropriate actions to terminate the contract of employment.  But how does an employer proceed to do this legally?

The law?

Employers are prohibited from employing any illegal foreign nationals in terms of the Immigration Act 13 f 2002.  Where an employer is found guilty of contravening this act, the employer faces imprisonment of no longer than one year, for a first offence, or can be fined.

Employers should ensure that potential employees are in possession of a valid work permit/visa.  Conclude a fixed term contract with such a person, clearly stating that the contract is valid for the duration of the valid work documentation.

In the instance where the foreign national is employed on a permanent contract, or without any contract, the employer must follow a fair procedure before employment can be terminated.  Take note that South African labour legislation protects foreign nationals, even if they are not in possession of a valid work permit/visa.  This means that foreign nationals can also approach the Commission for Conciliation, Mediation and Arbitration (CCMA) and lodge a claim for unfair dismissal if the employer does not follow a fair procedure with a valid reason for termination of employment.

Valid work documentation

The employer must act as soon as he/she becomes aware of the fact that the employee’s work documentation has expired:

• inform the employee that legislation prohibits the employment of illegal foreign nationals and that it is therefore a requirement to continue employment;
• warn the employee that, should he/she fail to produce a valid work permit/visa within a reasonable time, it could possibly lead to the termination of employment.

The employer must provide the employee with the opportunity to obtain the required valid work permit/visa.  This could entail providing the employee with time off in order to obtain the documentation, and even assistance with the application.  If the employee fails to produce the required valid work permit/visa, the employer must follow the proper incapacity procedure to terminate employment and dismiss the employee.

Incapacity procedure

The incapacity procedure entails the following:

1. Issue a notice of an incapacity consultation.  This notice must set out that:

• the issue regarding the employee’s valid work permit/visa will be discussed;
• due to the fact that he/she is not in possession of the required valid documentation, he/she is operationally unable to perform his/her contractual obligation;
• should he/she fail to provide the required valid documentation, it could possibly lead to termination of employment.

2. Consult with the employee and discuss the notice in full.  Provide the employee with the opportunity to respond to the allegations of not being in possession of the required valid documentation.  Discuss any possible assistance that can be offered to the employee.  Warn the employee that, if the valid documentation is not provided, it could lead to termination of employment.

3. Should the employee fail to provide the required valid documentation, issue the employee with a notice to attend an incapacity hearing. During the hearing, provide all the relevant facts/documents/evidence to the chairperson.  The employee will also be given the opportunity to state his/her case before the chairperson.  The chairperson may make a recommendation of dismissal.

UIF

Employers must also ensure that foreign employees are registered with the Unemployment Insurance Fund (UIF).  The only exception in respect of foreign employees where the employer does not have to register the employee for UIF, is when the employee is appointed on a fixed term employment contract and the employee will return to his/her country of origin after the contract expires.

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Many employers are unaware that in terms of the Labour Relations Act 66 of 1995, trade unions are entitled to acquire specific rights within the workplace if they are sufficiently represented. It is thus imperative for employers to take note of the following rights:

1. Trade union access to workplace

Any official or office bearer of the trade union is allowed to enter the employer’s premises in order to recruit new members, serve their members’ interests and hold meetings, or to conduct any ballot in terms of their constitution. It is important to note that trade unions are limited to meeting with their members outside normal working hours unless agreed otherwise. Employers should take care to conclude a collective agreement with the relevant trade union to give timeous notice of their intention to exercise this right i.e. 48 hours’ notice before conducting a ballot.

2. Deduction of trade union subscriptions or levies

This right confers that employers deduct the trade union’s levies from their members and pay the monies to the trade union. This right is subject to the employee’s authorisation which may be revoked by giving the necessary notice. When remitting the monies to the trade union, the employer must give such trade union:

• A list of the names of every member from whose wages the employer has made the deductions that are included in the remittance;
• Details of the amounts deducted and remitted, and the period to which the deductions relate; and
• A copy of every notice of revocation, if applicable.

3. Trade union representatives

A registered trade union, or two or more unions acting jointly, that represent the majority of employees in the workplace, are entitled to elect a trade union representative (shop steward) by its members.  The representative will be responsible for representing employees in disciplinary and grievance proceedings, as well as monitoring the employer regarding compliance with labour law and any collective agreement. The representative can also take time off to fulfil his duties and to be trained in his functions.

4. Leave for trade union activities

Any employee who is an office-bearer of a representative trade union may take reasonable leave to complete or fulfil the obligations of his or her office. The employer and trade union may agree to the number of leave days, how many leave days will be paid, and any conditions attached thereto.

5. Disclosure of information

By acquiring this right, the trade union may require the employer to disclose all relevant information in order to allow the trade union to effectively perform its functions, or when engaging in collective bargaining. It is important to note that there are restrictions on the information which may be disclosed (i.e. information which is legally privileged or information that would amount to the contravention of any law or court order if disclosed). 

Recognition of trade union rights

These listed rights aren’t automatically granted.  Instead, trade unions can seek recognition of these rights from the employer, failing which could result in a referral to the Commission for Conciliation, Mediation and Arbitration (CCMA), or even strikes. It is important to note that trade unions with adequate representation (approximately 25% of employees in the workplace) are only permitted access to the workplace and deductions of union fees, while majority trade unions (50% + 1) can obtain all the above listed rights.

Employers are lastly encouraged to seek further legal advice if approached by a trade union aiming to exercise these rights. This is essential to ensure adherence to statutory procedures and to mitigate any potential disruptions or risks in the workplace.

Contact the LWO for any advice or assistance!

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It is almost a certainty that at some stage an employee will become ill, or is unable to attend work due to a medical condition or procedure. In some instances, an employee may be unfit to work for weeks, for example when an employee must undergo a major surgery.

Section 23 of the Basic Conditions of Employment Act

Under South African law an employee is required to submit a medical certificate in respect of absence from work under certain circumstances. The heading of Section 23 of the Basic Conditions of Employment Act (BCEA) is labelled “Proof of Incapacity” and provides that:

• An employer is not required to pay an employee in terms of Section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

• The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.

It is therefore imperative for employers to request that employees must submit a valid medical certificate if they are absent from work for the periods set out above. Should the employee fail to do so, the employer is not obligated to remunerate the employee in respect of the absence from work.

In some circumstances it may also lead to further disciplinary action against the employee who fails to hand in a valid medical certificate in terms of the employer’s disciplinary code and workplace policies, which set out the possible disciplinary actions and sanctions in related circumstances.

Information included on the medical certificate

The BCEA does not specify what information a valid medical certificate must contain, but the Ethical and Professional Rules of the Health Professions Council of South Africa (HPCSA) does provide some more guidance to employers regarding the issuing of a valid medical certificate. In terms of the HPCSA’s rules, the following information should be present on medical certificate:

• the name, address and qualification of the practitioner;
• the name of the patient;
• the employment number of the patient (if applicable);
• the date and time of the examination;
• whether the certificate is being issued as a result of personal observations by such practitioner during an examination, or as a result of information which has been received from the patient and which is based on acceptable medical grounds;
• a description of the illness, disorder or malady in layman’s terminology with the informed consent of the patient: Provided that if such patient is not prepared to give such consent, the practitioner shall merely specify that, in his or her opinion based on an examination of such patient, such patient is unfit to work;
• whether the patient is totally indisposed for duty or whether such patient is able to perform less strenuous duties in the work situation;
• the exact period of recommended sick leave;
• the date of issue of the certificate of illness; and
• the initial and surname in block letters and the registration number of the practitioner who issued the certificate.

In the event that the abovementioned content does not appear on the medical certificate, the medical certificate may be invalid. However, before deciding to reject the validity of a medical certificate, an employer should conduct a thorough investigation and make the necessary enquiries from the employee and medical practitioner concerned, to confirm its validity.

This article is intended as general information and applies to employers and employees who fall under the scope of the Basic Conditions of Employment Act (BCEA). To ensure that you as an employer are aware of the correct provision applicable to your sector, contact the LWO on 086 110 1828.

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In terms of the Basic Conditions of Employment Act (BCEA), an employee may only work overtime if there is such an agreement between the employer and employee. This agreement is only valid for a period of 12 months and must be renewed annually.

If an employee earns in excess of the income threshold, which is currently set at R254 371.67 per annum (R21 197.63 per month) effective as of 1 April 2024, the overtime clause in the BCEA, as detailed below, does not apply. This amount includes remuneration before any deductions (e.g. income tax, pension, medical aid, etc.), but excludes contributions by the employer in respect of pension and medical aid. Transport allowance, performance awards (bonuses) and payment for overtime worked will also not be included. If the employee therefore earns in excess of the income threshold, the parties must agree what the payment or arrangement for overtime will be, if any.

Overtime also does not apply to the following persons:

• Senior management
• Salespersons who travel to the premises of customers and who regulate their own working hours
• Employees who work less than 24 hours per month

Do I pay overtime after 45 hours worked?

Normal working hours may not exceed 45 hours per week and any hours worked in excess of the agreed normal working hours are considered to be overtime. Overtime must be calculated daily:

• If the employee usually works five days a week, the hours worked in excess of nine hours a day are considered overtime.
• If the employee usually works six days a week, the hours worked in excess of eight hours a day are considered overtime.

What are the maximum hours of overtime?

• Ten hours per week; and
• Three hours a day.

An employee may not work more than 12 hours on any day. This includes overtime. A written agreement may increase the maximum hours of overtime per week to 15 hours per week, but this may not be applied for more than two months in any 12 month period.

How much should I pay my employee?

The employer must pay one and a half times the employee’s normal rate for each hour of overtime worked. However, the parties may agree that the employer:

• Pay the normal wage for overtime worked and exempt the employee for 30 minutes with full pay for each hour of overtime worked; or
• Exempt the employee for 90 minutes with full pay for each hour of overtime worked.

When do I have to grant this time off?

This time off must be granted within one month of the employee working the overtime. There is an option to extend this agreement to 12 months if it is so agreed upon in writing between the parties.

Employers must ensure that overtime is only worked by agreement, so that employees do not submit unnecessary claims for overtime worked. As there are various sectors and applicable legislation, it is essential for an employer to be aware at all times under which sector and legislation they are classified. In doing this, employment contracts are drawn up with correct clauses to protect the employer. The employee is then also aware of what is expected of him/her.

This article applies to overtime for employers and employees who fall under the scope of the Basic Conditions of Employment Act (BCEA). To ensure that you as an employer are aware of the correct overtime applicable to your sector, contact the LWO on 086 110 1828.

Contact the LWO for any advice or assistance!

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The aim of the Unemployment Insurance Act, 63 of 2001 as amended, is to establish an unemployment insurance fund in order to alleviate the harmful economic and social consequences of unemployment. Employers and employees contribute to the fund and employees who become unemployed, or their beneficiaries where this may be the case, may be entitled to benefits.

The role and scope of the Unemployment Insurance Fund (UIF) in South Africa’s labour justice system is often a topic of great interest and discourse. It is an essential institution intended to protect employees from financial uncertainty in times of unemployment, illness, maternity, adoption and even death.

However, there are guidelines and restrictions that determine who is eligible. Various criteria are set to determine who can apply. The Unemployment Insurance Act applies to all employers and employees, except for: employees who work for an employer for less than 24 hours a month, members of parliament, cabinet ministers, deputy ministers, members of provincial executive councils, members of provincial legislators and municipal councillors.

Registration

Employers who are obliged to pay unemployment insurance must register with the South African Revenue Service (SARS) or the UIF offices for the payment of contributions. An employer cannot exercise any discretion whether or not to register for unemployment insurance.

Payment of UIF contributions

Monthly UIF contributions must be repaid within seven days after the end of the month in respect of the payable contributions.

The employer’s responsibilities

• UIF registration must be done as soon as the employee’s employment commences.
• Monthly payments.
• 1% deducted from the employee’s salary for the employee’s contribution and 1% from the employee’s salary for the employer’s contribution.
• It is the employer’s responsibility to make the deductions and pay the monies over.
• Submission of statements.
• Submission of UI-19 forms as soon as an employee’s employment starts and ends.
• Keeping records and accurate employee information to be submitted and changes noted.

The employee’s responsibilities

• When an employee needs to claim unemployment insurance for whatever reason, it is the employee’s responsibility to file the claim.
• Employees have an obligation to inform employers of any changes related to their personal details.

Employer’s risk in terms of non-compliance

Any person found guilty of non-compliance with this law will be liable to a fine and/or imprisonment.

It is essential for employers and employees to be aware of their rights and responsibilities.

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During disciplinary and arbitration proceedings, the employer has a responsibility to present evidence to the chairperson or commissioner to prove its case.  Evidence is defined as: “the available body of facts or information indicating whether a belief or proposition is true or valid”. It is thus the proof of the employer’s argument and not just the argument itself.

Employer’s responsibility

It has however recently been noted that employers tend to neglect this responsibility of adducing evidence to acquire, compile and prepare evidence for the disciplinary hearing or arbitration.

This consequently negates the chairperson’s ability in conducting the hearing seeing as he will need to hear evidence from both sides to make an objective decision regarding the matter. This neglect will also negatively affect the employer’s case should the matter be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Case law #1

In the case of NUMSA obo Mnisi and First National Battery (2007) 16 NBCCI, employees were accused of stealing batteries from their workplace. During their disciplinary hearing, a tape recording was introduced as evidence in the latter stages of the hearing. The tape recording contained a confession by one employee that implicated the others. Despite objections by the union, the tape was admitted, leading to the dismissal of the applicants.

At arbitration, the employer failed to produce direct evidence linking the applicants to theft, relying solely on testimony from disciplinary officials. Shockingly the crucial tape recording allegedly went missing and instead of calling the employee who made the recording to testify, the employer decided to only introduce a written statement from the employee as evidence. The commissioner stressed the employer’s responsibility to prove fairness in dismissals, emphasising the careful evaluation of evidence in arbitration. With no direct evidence and the missing tape, the commissioner found the dismissal unjustified. Furthermore, the admission of the tape without allowing cross-examination of the aforementioned, was deemed unfair.

Case law #2

In another case, Moloko v Ntsoane and Others (JR 1568/02) [2004] ZALC 35, unauthenticated video footage together with a written unsworn statement was introduced as evidence against an employee in disciplinary proceedings. The employee was later found guilty and subsequently dismissed. In both the hearing and the arbitration proceedings, the only evidence from the complainant was an unsworn statement, which in the opinion of the court amounted to hearsay evidence, seeing that the statement was never affirmed by the maker thereof. Coupled this with the unauthenticated video footage, the court found the dismissal of the employee substantively and procedurally unfair.

Key points to take note of:

• Appoint a qualified person to chair disciplinary hearings who is knowledgeable in both labour law as well as the law of evidence;
• Evidence presented at hearings need to meet the requirements in terms of the law of evidence in order to be admissible;
• Accused employees should be given the chance to cross examine or dispute evidence presented by the employer;
• If inadmissible evidence is considered when dismissing an employee, the dismissal would be unfair.

It is clear that if an employer does not introduce or present evidence correctly at disciplinary hearings or arbitrations, serious consequences may follow such as the employee’s dismissal being declared unfair. The employee may further be awarded compensation, or even be reinstated.

Contact the LWO for any advice or assistance!

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