Understanding the Basic Conditions of Employment Act in South Africa – Hannes Latsky

For employers in South Africa, understanding the legal framework governing employment is crucial to ensure compliance and maintain a fair and productive workplace. One of the fundamental pieces of legislation that employers need to be familiar with is the Basic Conditions of Employment Act (Act 75 of 1997 as amended) also known as the BCEA. In this article, we’ll provide a general overview of the BCEA and some interesting provisions.

What is the Basic Conditions of Employment Act (BCEA)?

The Basic Conditions of Employment Act, enacted in 1997, sets out the minimum terms and conditions of employment for workers in South Africa. It applies to most employers and workers, with some exceptions, such as members of the National Defence Force, the South African National Intelligence Agency, and unpaid volunteers working for charity.

Important Provisions of the BCEA:

1. Working Hours: The BCEA regulates the maximum normal working hours, overtime, and meal intervals for employees. According to the Act, an ordinary workweek should not exceed 45 hours, and employees are entitled to a lunchbreak of one hour after five hours of continuous work. This lunchbreak may be reduced to 30 minutes by agreement between the employer and employee.

2. Leave: The Act stipulates the minimum annual leave entitlement for employees, which is at least 21 consecutive days per year for full-time workers. Employers and employees can instead agree that leave will be accumulated at a rate of one day for every 17 days worked. It also outlines provisions for other forms of leave, such as sick leave, family responsibility leave and maternity leave to name but a few.

3. Remuneration: The BCEA sets out guidelines for calculation of wages, the making of deductions from the employee’s remuneration and the payment of remuneration.

4. Termination of Employment: The Act also governs the termination of employment, including notice periods, severance pay, when applicable.

5. Employment Contracts: Employers are required to provide employees with written particulars of employment, outlining the terms and conditions of their employment, including working hours, remuneration, leave entitlements, and details about the employee’s position and place of work.

Five Interesting Truths About the BCEA:

1. Enforcement Mechanisms: The Department of Employment and Labour is responsible for enforcing compliance with employment legislation including the BCEA. Employers found to be in contravention of the Act may face penalties, fines, and other legal action.

2. Sectoral Determinations: In addition to the BCEA, certain industries or sectors may be subject to sectoral determinations, which set out specific conditions of employment tailored to the needs of that sector. These determinations may prescribe different minimum wages, working hours, and leave entitlements.

3. Protection of children: The BCEA includes stringent provisions against child labour and provides that no person may employ a child under the age of 15 years, or who is under the minimum school-leaving age, if this is 15 or older. The Act sets further protection for children between the age of 15 and 18. These provisions ensure that these workers receive fair treatment and employment conditions that does not pose any risk to the well-being, education, physical or mental health and spiritual, moral or social development of the child.

4. Amendment and Updates: The BCEA has undergone several amendments since its enactment to adapt to changing labour market conditions and address emerging issues. Employers should stay informed about these amendments to ensure ongoing compliance with the law.

5. Role of Collective Bargaining: The BCEA allows for collective agreements to be negotiated between employers and trade unions which may in certain circumstances override certain provisions of the Act, provided that they offer equal or better benefits to employees. These agreements play a crucial role in shaping employment conditions in specific industries or workplaces.

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Annual leave

Sick leave

During the first six months of employment, paid sick leave is calculated as one day paid sick leave for every 26 days worked. In a 36-month leave cycle, an employee is entitled to 30 days’ paid sick leave (if the employee works five days per week) or 36 days’ paid sick leave (if the employee works six days per week). This leave cycle commences, irrespective of a probation period, on the first day of employment, and paid sick leave taken during the first six months of employment can be deducted from it.

Is it paid or unpaid leave? Firstly, is sick leave due to the employee? If the answer is yes, then you must determine whether a medical certificate is needed. A medical certificate has to be presented if an employee is absent from work on more than one occasion or more than two consecutive days within an eight-week period. A medical certificate is not needed if an employee is absent from work on one occasion for two or less consecutive working days within an eight-week period.

If paid sick leave is not due, there are two options. You can process it as unpaid leave, or you can process it as paid leave and deduct it from the employee’s annual leave.

Family responsibility leave

Employees who have been employed for more than four months and who work for at least four days a week will be entitled to three days’ family responsibility leave during each 12 months of employment. Family responsibility is granted when the employee’s child is born or is sick, or in the event of the death of the employee’s spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchildren or sibling. An employer may request reasonable proof (a medical or death certificate) before paying an employee for family responsibility leave. This leave cannot be accumulated.

Maternity leave

PARENTAL LEAVE

• on the day that the employee’s biological child is born,
• or in the case where a child is adopted on the day that the adoption order is granted,
• or on the day that the child is placed in the care of the employee as prospective adoptive parent.

ADOPTION LEAVE

COMMISSIONING PARENTAL LEAVE

PUBLIC HOLIDAYS

What is a policy?

1. Code of conduct

• maintain discipline within the framework of its procedures in a reasonable, fair and consistent manner with emphasis on progressive discipline;
• prevent unacceptable behaviour of employees;
• positively influence unacceptable behaviour; and to
• maximize productivity within the workplace.

2. SMOKING, ALCOHOL AND DRUG RELATED POLCIES

3. LEAVE POLICY

4. Cell phone policy

5. GRIEVANCE PROCEDURE

• Was there a rule in the workplace?
• Is there proof that the employee was aware of this rule?
• Did the employee act according to the rule?
• Was there progressive warnings (according to the offence)

WHAT IS A PROCEDURE?

1. DISCIPLINARY CODE

• First offence: written warning
•  Second offence: serious written warning
• Third offence: final written warning
• Fourth offence: dismissal

2. APPEAL PROCEDURE

HOW DO I IMPLEMENT THESE POLICIES AND PROCEDURES?

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

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1. Dishonesty: Was the employee transparent about their secondary employment?
2. Mitigation of lost trust: Can the trust be rebuilt, or has the behaviour led to irreversible damage?
3. Damage to Employer’s Business: Did the employee’s actions wilfully harm the employer?

Contact the LWO at 0861 101 828 for more information about how to use labour legislation to your benefit in the drafting of employment contracts as well as policies and procedures.

What is a grievance?  A grievance is any feeling of dissatisfaction from an employee regarding the employer, working environment, fellow employees, clients of the employer or any other aspect of the employment relationship. Dissatisfaction with regards to conditions of employment, remuneration, enforcing of discipline, or retrenchment, are not considered grievances and therefore cannot be addressed by the grievance procedure.

Dealing with a grievance

Every employee, irrespective of employee’s position, has the right to lodge a grievance. Lodging a grievance should occur without fear of victimisation or retaliation, regarding a situation that has a negative impact on the employment relationship or work environment. Employees are, however, often reluctant to lodge a grievance, which contributes to unhappiness and an unsatisfactory work environment which in turn may lead to a decrease in productivity and in extreme causes result in the employee’s resignation.

All employers, regardless of size or number of employees, should implement a grievance procedure. This procedure should preferably be in writing and readily available and accessible to all employees.

Grievance procedure

The purpose of the grievance procedure is to firstly create a harmonious working environment by identifying and resolving any dissatisfaction or feeling of injustice from employees in a timeous and efficient manner.  Secondly, the grievance procedure protects the employer in cases of constructive dismissal. In such a case, the commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) will always ask if there was a grievance procedure that the employee could have followed. Constructive dismissal refers to when an employee resigns due to unbearable working conditions.

Typically, a grievance procedure policy should include the following:

• Step 1:  The employee must file a grievance in writing with the employee’s immediate supervisor/ line manager within two days after the incident.  If the grievance is against the employee’s immediate supervisor or manager, the employee must refer the grievance to the next level of seniority.  The employee may be assisted or represented by a co-employee.

• Step 2:  If the grievance is not resolved within two days, the grievance must be referred officially to the next level of seniority e.g. department manager.

• Step 3:  If the grievance is not resolved within two days, the grievance must be referred officially to the next level of seniority e.g. human resource manager.

• Step 4:  If the grievance is not resolved within two days, the grievance must be referred officially to the highest level of seniority e.g. the Director.  The employer must investigate the grievance and make a finding within five days.  The employer’s finding is final and binding.

Constructive dismissal: the possible consequence of ignoring a grievance

Section 186(1)(e) of the Labour Relations Act defines constructive dismissal as the termination of employment at the instance of an employee with or without notice due to continued employment having been made intolerable by the employer.

In the event of grievances not being addressed by an employer by the application of a well-structured grievance procedure, it may lead to the resignation of an affected employee and thereafter a claim of constructive dismissal.

In the matter of Albany Bakeries Limited v Van Wyk and Others the Labour Appeal Court emphasised the importance of an employee exhausting reasonable alternatives to resignation.  Therefore, the adoption of a formal grievance procedure that is known to and communicated to employees will serve to not only resolve grievances of employees but also protect employers from possible claims of constructive dismissal by employees in that the employer will be able to show that a proper procedure was in place and followed after a grievance was lodged by an employee.

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The Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa is an independent statutory body that facilitates the resolution of workplace disputes through conciliation, mediation and arbitration. It was established in terms of the Labour Relations Act (LRA) and serves as a forum for dispute resolution between employers and employees.  When a dispute arises either party can approach the CCMA. Conciliation is the first step in the dispute resolution process and aims to reach a mutually acceptable settlement without going to court.

What is conciliation?

Conciliation is a process before the CCMA, a Bargaining Council or an accredited agency, where a conciliator will try to assist parties (employer and employee), to resolve a workplace dispute. It is a compulsory process by law, however the outcome is voluntary as it is the right of parties to decide whether they wish to settle the dispute and on what terms. The process is private and confidential, off the record and “without prejudice” meaning that nothing the parties say during the process can be held against them in another process unless by agreement or by an order of a court.

PRE-CONCILIATION

The commissioner or a conciliator may contact parties by telephone or other means, prior to the commencement of the conciliation in order to seek ways to resolve the dispute. If the dispute is resolved, the outcome is also binding.

Advantages of conciliation

Conciliation is a free process that provides for the quick and fair resolution of disputes. It is an opportunity for the parties to listen to one another and to attempt to agree on an outcome that will bring closure to the dispute.

THE CONCILIATION PROCESS AT THE CCMA

• Filing the dispute: The party initiating the process must complete and submit the CCMA’s prescribed forms within the stipulated time frame. The other party is then notified of the dispute and given an opportunity to respond.
• Selection of a commissioner: The CCMA appoints a commissioner, who acts as a neutral third party to facilitate the conciliation process. The commissioner schedules a date, time, and venue for the conciliation hearing.
• Preparing for conciliation: Both parties gather relevant documents and evidence to support their case. They may also engage in pre-conciliation negotiations or attempt to resolve the matter informally.
• Conciliation hearing: The conciliation hearing takes place at the CCMA office or an agreed-upon location. The commissioner facilitates discussions between the parties, encouraging dialogue and exploring possible solutions. The aim is to find a mutually acceptable resolution to the dispute.
• Settlement agreement: If the parties reach a settlement during conciliation, they record the terms of the agreement in writing. This settlement agreement is legally binding and enforceable.
• Certificate of outcome: If a settlement is reached, the commissioner issues a Certificate of outcome, confirming the resolution of the dispute. This document serves as proof that the matter has been resolved.
• No settlement reached: If the parties fail to reach a settlement during conciliation, the matter may proceed to arbitration, where a decision will be made by an independent arbitrator.

Applying for conciliation

An employee may apply for conciliation using a LRA 7.11 referral form within:

• 30 days of the date of dismissal;
• 90 days of the date of an unfair labour practice;
• 6 months of the date of an act of unfair discrimination; or
• 6 months after the act or omission referred to in section 198D (1) of the LRA.

A late referral will require an application for condonation.

Take note

It’s important to note that the conciliation process at the CCMA is intended to be informal, flexible, and less adversarial. The focus is on resolving the dispute amicably and reaching a fair outcome for both parties.

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