What about performance?

• This confirms the tasks/duties that the employer employs the employee to perform.
• It links a fixed standard regarding quantity and quality to the above tasks/duties.
• It forms the basis of regular performance appraisals when looking at increases and/or performance bonuses.
• The job description is a critically important document when addressing poor work performance.

What about UIF and COIDA?

UIA applies to all employers and employees (excluding employees working less than 24 hours a month for an employer).  An employer does not have any discretion whether or not to register for unemployment insurance and to pay over the monthly contributions (1% deducted from the employee’s salary for the employee’s contribution and 1% of the employee’s salary for the employer’s contribution).

COIDA applies to all employers and casual and full-time employees who, as a result of a workplace accident or work-related disease are injured, disabled, killed or become ill.  An employer carrying on business in South Africa, must register with the Compensation Commissioner, and pay the annual assessment fee.

Moonlighting is defined in the workplace as working a second job without informing your main employer, and employees earn extra money outside of working hours. A possible concern is that moonlighting may cause a decrease in productivity in the workplace. Data from the Momentum/ Unisa Household Index shows that an estimated 14% of households obtain an additional income from a second job. But does the employer have any right to object to an employee holding down a second job while being employed?

What is precautionary suspension?

Precautionary suspension is imposed when an employer suspects that an employee might have breached either the business’s disciplinary code, or the terms and conditions of employment.  Due to the nature of the alleged misconduct or breach and lack of proof of guilt, the employer can proceed to suspend the employee on a precautionary basis pending an investigation, especially if there is a possibility that the employee can interfere with the investigation in any way.  Precautionary suspension is with full pay and benefits.  The employee should understand that he/she is not being punished and should not suffer any prejudice in general or in respect of remuneration.

What is punitive suspension?

Punitive suspension is a form of punishment following a disciplinary hearing where an employee is found guilty of misconduct or a breach of the terms and conditions of employment.  Punitive suspension is a sanction which can be imposed on the employee as an alternative to dismissal and is without pay and benefits. The employer should make it very clear to the suspended employee whether he/she is being suspended on a precautionary or punitive basis to avoid any confusion and possible subsequent Commission for Conciliation, Mediation and Arbitration (CCMA) referrals.

What about the new employer?

Labour legislation applies to all employers and employees. The Basic Conditions of Employment Act (BCEA) defines the minimum terms and conditions of employment on which the parties may contract. However, if a business falls under an industry that is part of a specific Bargaining Council’s scope of application, the Bargaining Council’s collective agreement will regulate labour relations in that industry and employers are legally obliged to comply with this. Note that certain Bargaining Councils only apply to specific regions. The obligation rests with the employer to determine under which industry the business falls and then to comply with applicable legislation.

Employers that fall within a Bargaining Council’s scope of application must ensure that their employment contracts are drafted in line with this legislation.  Note that the minimum terms and conditions of employment as contained in the Bargaining Council’s collective agreement rank higher than those contained in the BCEA. If any labour disputes arise between the employee and employer, ʼn Bargaining Council will have jurisdiction to deal with these disputes, as opposed to referring the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Functions of a Bargaining Council include to:

• conclude and apply collective agreements;
• prevent and resolve labour disputes;
• establish and administer a fund to resolve disputes;
• encourage and establish training and education;
• to establish and administer pension, provident, unemployment and medical aid funds, as well as sick pay, holiday pay and training schemes for the benefit of one or more of the Bargaining Council’s parties or their members.

All employers must comply with the Occupational Health and Safety Act. This law requires that employers, as far as is reasonably practicable, provide and maintain a work environment that is safe and without risk to the health of employees, customers, members, visitors, contractors, etc. who may be directly affected by their activities, or who enters the workplace.

In addition to this general obligation, additional regulations have been published in terms of COVID-19 that must be complied with. Each workplace is unique with regards to, among other things, the space and setup, activities, working methods, types of interaction, etc. Although COVID-19 regulations are legally enforced, it is a good idea to implement a COVID-19 policy and procedure in the workplace to clarify the required behaviour as well as the consequences in cases of non-compliance. In order to be able to apply discipline in the workplace, the employer must implement clear rules and also be able to prove that employees are aware of the rules as well as the consequences if these rules were broken.

What should be included in the COVID-19 policy and procedure?

• Availability and use of safety equipment
• Daily screening
• Handling of shared facilities, such as a kitchen, bathroom, cafeteria, etc.
• Procedure when other persons enter the premises
• Rules with corresponding sanctions

Beware of these pitfalls

• Be fair and just
• Act consistently
• Always follow the correct procedure continuously