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.

Contact the LWO for any advice or assistance!

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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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Are you a designated employer?

• Employers who employ 50 or more employees; or
• Employers who employ less than 50 employees, but have at least an annual turnover as per the respective sectors set out below:

SCHEDULE 4

TURNOVER THRESHOLD APPLICABLE TO DESIGNATED EMPLOYERS

What are the responsibilities of designated employer’s?

• Consult with employees.
• Conduct an analysis.
• Prepare an employment equity plan.
• Report to the Director-General on progress made in implementing its employment equity plan.

How often must the reports be submitted?

Employment Equity plan (EEA13)

Is there a risk for an employer should there not be complied with the act?

Disputes regarding unfair discrimination can be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) within 6 months and compensation of up to 24 months of the employee’s remuneration may be awarded against the employer.

Any designated employer that is found guilty of non-compliance with this act will be liable to a fine of up to R2,7 million or 10% of the employer’s annual turnover, whichever is the greatest.

Legislation governing labour Relations in South Africa

COMPENSATION FOR OCCUPATIONAL INJURY AND DISEASES ACT, ACT 130 OF 1993 (COIDA)
When injured on duty or becoming sick as a result of your work, an employee can claim compensation from the Compensation Fund. Families or dependants can also claim if their breadwinner dies as a result of a work-related accident or disease. All employers must register with the Compensation Commissioner and will be rated annually, after which payments must be made.

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

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

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.

Kindly contact us at 0861 101 828, or at info@lwo.co.za with any queries, or should you require any labour law advice / assistance.

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