Restaurant owners often employ people on a commission basis within their restaurant usually in an attempt to gain assistance.  What many employers do not realise is that this type of employment, which is almost always verbally concluded, has its own requirements and rights conferred which must be adhered to. Often employers end the contract summarily when they don’t want or need the employee anymore for whatever reason and then have to face the consequences of an unfair dismissal at their respective Bargaining Councils*.

COMMISSION WORK:  THE DEFINITION

In order to understand and adhere to the requirements, it is necessary to first explain its definition: in the restaurant industry “commission work” is defined as a worker taking on the role of a waiter and earning a salary through the commission or “tips” he/she earns. The worker will then be paid on the day or as agreed in terms of the contract or the respective Bargaining Council’s main collective agreement.

The most important requirement that employers need to be aware of, is that this agreement between the parties needs to be in writing. This is to protect both the employer and employee’s rights should a dispute arise. The contract should also state whether the employee would be employed permanently or only for a fixed term.

ADDRESS THE FOLLOWING

The following points need to be addressed in the contract:

• The worker’s rate of commission.
• The basis for calculating commission.
• The period over which the payment is calculated (the Bargaining Councils’ main collective agreements restrict this period to one month).
• When the employer shall pay the commission to the employee (the Bargaining Councils’ main collective agreements restrict this period to not more than seven days after the end of the earning period).
• The type, description, number, quantity, margin, profit or orders (individual, weekly, monthly or otherwise) for which the employee is entitled to earn commission.

COMMISSION VS A MINIMUM WAGE?

Because these workers do not earn a fixed salary, there is a possibility of them not earning any, or enough commission even if they have worked in terms of the agreement. Therefore, the respective main collective agreements require employers to comply with the regulations of the National Minimum Wage Act 9 of 2018 to ensure that commission workers are still paid the minimum wage if they do not earn an amount equivalent or exceeding that of the minimum wage. Employers should therefore compare the amount of commission the employee has earned to the number of hours worked. If the commission does not reach the equivalent of the minimum wage per hour worked, then the employer has the responsibility to pay the difference.

AVOID THIS MISTAKE

Many employers make the mistake of thinking that because the employee only earns commission, the employee is not in fact an “actual employee of the business” and they therefore don’t have to comply with employment procedures as with a normal employee.  Legislation and case law confirms that commission workers are considered employees in terms of their contracts.  Non-compliance with labour law can have a huge financial impact, especially when it comes to termination of the employment relationship, and employers should take care to be informed about their duties and responsibilities.

EMPLOYMENT CONTRACTS

An employment contract is crucial in managing labour relations as it is the basis of the relationship between the employer and the employee.  It defines the terms and conditions as agreed upon between the parties and regulates their relationship.  Furthermore, the employment contract describes rules and responsibilities to be adhered to by both the employer and the employee.  The employment contract is vital to keep confusion and discontent in the working relationship to a minimum.  By including additional information in the employment contract employers empower themselves and can proactively manage possible future disputes, saving time and money.

*“Bargaining Councils” refers to the Bargaining Council for the Restaurant Catering and Allied Trades (Johannesburg); Bargaining Council for the Food Retail, Restaurant, Catering and Allied Trades (Pretoria) and the Bargaining Council for the Fast Food, Restaurant, Catering and Allied Trades (Rest of South Africa) as a collective.

Labour legislation strictly regulates any deductions made from an employee’s remuneration, and employers must guard against deducting any money without following the correct procedure.  Various types of deductions can be made ranging from statutory deductions (unemployment insurance, income tax, a court or arbitration order), additional deductions specific to the business industry, and other general deductions (loss of or damage to property, loans, provident or pension fund, union fees and the like).

WARNINGS, DEDUCTIONS AND DOUBLE JEOPARDY

Can an employer recover damages from an employee due to negligence and issue the employee with a warning for the same misconduct, or will this constitute double jeopardy?  Yes, the employer may do so.

Where damages or losses are caused by an employee, the employer is entitled to recover damages based on a civil claim in terms of the common law and the misconduct can be dealt with by way of disciplinary actions as established by the business’ disciplinary code.  The employer must include the sanctions for misconduct in the disciplinary code, and if an offence does occur, the employer must act accordingly. The appropriate sanction for an offence is typically some sort of warning, or in very serious cases, dismissal (but only once a disciplinary hearing has been held).

The employer’s right to recover damages or losses from the employee, as well as issuing the appropriate warning to the employee for the same misconduct, was confirmed by the judgement of Solidarity obo Mohammed / Air Traffic and Navigation Services Ltd [2011] JOL 27921 (CCMA).

DEDUCTIONS FOR DAMAGE RECOVERY

Section 34 of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997), or the BCEA, states that deductions are only permitted if the employee has given his or her consent, or if the deduction is authorised through a collective agreement, statutory provision (legally prescribed deduction), court order or arbitration award.

Subject to due process being followed, the employer is authorised to deduct a certain amount from the employee’s remuneration to recover damage to the employer’s property. The BCEA stipulates the following requirements before the employer can make such a deduction:

• The employee must consent in writing to the deduction and the amount must be specified.
• The loss or damage must have occurred in the course of employment, and as a result of the employee’s intent or negligence.
• The procedure the employer follows must be fair and the employee must be given a reasonable opportunity to state his or her case, including why the deduction should not be made.
• The employer may only deduct a maximum of 25% of the employee’s remuneration at a time.
• The total amount the employer deducts may not exceed the amount of the actual loss or damage the employer suffered.

AVOID THIS MISTAKE

Employers often make the mistake of simply informing the employee of the damage to be recovered without first having followed the correct process. Another mistake is to deduct more than 25% of the employee’s remuneration in one go, with or without permission.

This can result in the employee approaching the Commission for Conciliation, Mediation and Arbitration (CCMA) by declaring an unfair labour practice dispute.

Businesses operate in a challenging environment where the economy and other external factors can limit their ability to remain competitive and sustainable in the labour environment. To overcome these challenges, businesses can consider a range of options, including reorganising, restructuring, and even implementing layoffs (retrenchment).

Employers must consider many aspects to limit their risk in relation to the process and payment of severance pay.  It is essential that employers always follow the correct procedure as required by labor law when considering any changes to employees’ terms and conditions of employment, especially when there is a possibility that employees may lose their jobs as a result.

LAYOFFS:  CONSULTATION PROCESS

Before an employer can consider any layoffs, they must follow a strict procedure as outlined in the Labour Relations Act. Consultations form an extremely important part of this process and include the following:

• Written notice: Employers must notify employees of the intended consultation by means of a written memorandum with at least 48 hours’ notice before the consultation.  Each employee must sign a copy of the memorandum as proof of receipt.  It is important that employees have the opportunity to prepare for the consultation and find possible alternative workable solutions.  If an employee is a member of a trade union, the trade union must also be notified of the consultation.
• First consultation: Consult with the employees to discuss the content of the notice.  The purpose of the consultation is for the employer to give employees an opportunity to make representations regarding the proposed layoffs.  Both parties now have the opportunity to discuss alternative considerations.  The employer must at all times act in good faith and keep an open mind throughout the process and give serious consideration to all alternative proposals presented.  The consultation must be held with all potentially affected employees and/or the union.
• Alternatives: All alternatives presented during the consultation must be investigated and discussed.  If the alternatives are not workable and there are no further alternatives, the process can be concluded.  Employees affected by the layoffs must be informed of this in writing and receive the necessary documentation. The notice period begins when the employee becomes aware of the layoff.

  If an employee suggests at any given moment during the consultations that they can be laid off voluntarily, the employer can accept it as such.  However, if an employee chooses voluntary redundancy, they must be aware that they will not be able to claim unemployment benefits from the Unemployment Insurance Fund.

TAKE SPECIAL NOTE

Employers must take special note of the following:

• Do not pre-identify employees to be laid off.
• The reason for layoffs must be fair.
• All parties must be consulted with.
• Selection criteria must be fair and objective.
• The final payment of remuneration must be correctly calculated and paid out.

WHAT IS “SEVERANCE PAY”?

An employer must pay “severance pay” to an employee who is laid off.  This severance package is normally equal to at least one week’s compensation for each completed year of continuous service.  However, the amount can vary depending on industry-specific legal provisions.

In addition to the severance pay, the employer must also pay the following as part of the final payment of remuneration:

• Salary up to and including the last working day.
• Accumulated leave.
• Payment for notice period, even if the employee is not required to work the notice period.

Employers must comply with strict requirements set by labour legislation.  Compliance is non-negotiable and requires specialist knowledge, which poses a business risk for the employer.

South African labour legislation, including the Labour Relations Act, 66 of 1995, and the Basic Conditions of Employment Act, 75 of 1997, place no obligation on the employer to host a year-end function, or for example a Christmas party.

Although a year-end function can help to relieve tension and strengthen employee relations, it is important to regulate employees’ behavior and actions during the party to ensure compliance with legislation and the business’ policy.

WHAT ARE THE EMPLOYER’S  “PARTY” OBLIGATIONS?

The employer has definite obligations when it comes to work functions and can be held responsible for employees’ actions if these actions take place within the scope of their duties.  Specific aspects to consider include:

• Potential damage to the employer’s reputation.
• Potential damage to internal working relationships.
• Risk of employees driving under the influence of alcohol or exceeding the legal blood alcohol limit.
• Employer’s health and safety obligations regarding harassment (both of a sexual or non-sexual nature).

Employers should confirm and implement measures for work functions in advance, even if they have a “zero tolerance” alcohol policy in place. If alcohol is served at the function, it is important that the employer can demonstrate that they have made an attempt to manage employees’ behavior regarding alcohol consumption. 

PRACTICAL TIPS FOR EMPLOYERS

Here are some practical tips for employers to ensure that drink and misbehavior do not take over the party:

• Make alcohol breathalyzers available to employees to test whether they are within the legal limit before they drive home.
• Provide the details of a taxi service or even arrange transport home if possible for employees attending the party.
• Ensure that adequate food, non-alcoholic beverages and plenty of water are available.
• Avoid any drinking games.
• Ensure that responsible drivers clearly understand drug abuse and alcohol policies and that they know when to step in should any situation get out of control.
• Clearly communicate the start and end times of the function.
• Warn employees that they are responsible for their actions after the function and that if they join an after party, they must act responsibly and ensure that they can get home safely.
• Watch out for discrimination and harassment. If harassment or any other inappropriate behaviour is observed, intervene immediately. Do this politely and firmly, but do not under any circumstances ignore such behaviour.
• Plan for dealing with emergencies, injuries or medical problems that may arise during the event. (If the function is organised and sponsored by the employer, and attendance is either mandatory or strongly encouraged, it is more likely that injuries sustained during the event can be considered an injury on duty.)

The workplace is a diverse environment that encompasses a wide range of cultures, religions, beliefs, values, political views, frames of reference, work ethics, and opinions. To prevent workplace accidents, it is important to be aware of hazards and follow safety rules. Employers should establish clear boundaries from the beginning of the employment relationship to avoid any uncertainties going forward. When taking disciplinary action or holding consultations, employers must ensure that they follow the correct procedures to ensure compliance with legislation and company policy.

In today’s fast-paced business world, relationships between employers and employees can sometimes turn sour. When former employees pose threats or engage in harassment, employers need to take action to protect their assets, their employees, and their reputation. One crucial legal tool in such situations is obtaining a protection order against a former employee.

UNDERSTANDING PROTECTION ORDERS

Protection orders, commonly known as restraining orders, are court-issued documents that legally require an individual to maintain a specific distance from a designated person or location. These orders are instrumental in safeguarding victims from various forms of harassment, including physical violence, stalking, or intimidation. In the context of former employees, protection orders are often sought when they pose a threat to the organisation, its employees, or its clients.

PROTECTION ORDERS AGAINST FORMER EMPLOYEES

Protection orders against former employees are typically pursued when a company has justifiable concerns about their former employee’s behaviour. Some common examples include:

• Threats of violence or harm: When a former employee has made explicit threats against the business, its employees, or its clients/customers/members, it is essential to take such threats seriously.
• Stalking and harassment: Former employees may engage in stalking or harassment activities, including continuous phone calls, unwanted emails, or showing up at the business premises or employees’ homes.
• Violation of non-disclosure agreements or intellectual property theft: If a former employee is suspected of stealing confidential information or breaching non-disclosure agreements, a protection order can help to prevent further damage.
• Aggrieved former employees: Dismissed employees who are unhappy about their termination may resort to damaging the business’ reputation or spreading false information. Protection orders can restrict them from making defamatory statements.

PROCESS OF OBTAINING A PROTECTION ORDER

btaining a protection order against a former employee is a legal process that should be taken seriously. The following steps are typically involved:

• Consult with an attorney: The first step in seeking a protection order is to consult with an attorney who specialises in employment law or civil litigation. An attorney can help you assess the situation, gather evidence, and determine whether pursuing a protection order is the appropriate course of action.
• Gather evidence: Gathering evidence is always crucial in obtaining a protection order. This may include written threats, emails, text messages, voicemails, or any other documentation that demonstrates the former employee’s harmful intent.
• File a petition: Your attorney will help you file a petition in the appropriate court, detailing the reasons for seeking a protection order and providing evidence to support your case.
• Attend a hearing: Once the petition has been filed, a court hearing will be scheduled to attend on a specific date. At the court hearing, both parties will have an opportunity to present their cases. The judge will evaluate the evidence and determine whether a protection order is warranted.
• Issuing of the protection order: If the judge finds that the former employee poses a legitimate threat, they will issue a protection order that outlines the specific terms and conditions. This order can be temporary or permanent, depending on the circumstances.
• Enforcement and compliance: Once a protection order is granted, it is essential to ensure that it is properly enforced. Violations of the order can lead to severe legal consequences for the former employee, such as arrest.

Protection orders against former employees serve as a vital legal mechanism to safeguard businesses, their employees, and their interests from potential harm, harassment, and damage. When a former employee’s behaviour raises concerns, it is imperative to consult with legal counsel and follow the appropriate steps to obtain a protection order. By taking action, businesses can mitigate the risks associated with aggrieved former employees and ensure the safety and security of their operations.

What is a 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. We strongly advise employers to implement the following policies in the workplace:

Code of conduct

Smoking policy

Sick leave policy