It is important for employers to know the requirements regarding child labour stipulated in legislation before employing children. A child is defined in South Africa as anyone under the age of 18.

Basic Conditions of Employment Act (BCEA)

The Basic Conditions of Employment Act defines an employee as:

1. any person who works for another person or for the State and who receives, or is entitled to receive, any remuneration, who is not an independent contractor; and
2. any other person who in any way assists in carrying on the business of an employer or carries on the business himself.

Sectoral Determination 13 (SD 13)

Child labour is strictly regulated in Sectoral Determination 13: Agricultural sector. No person may employ a child in farming activities who is younger than 15 years of age; or who is below the minimum school leaving age in terms of any law. Currently, children in South Africa must attend school until the last day of the year in which the learner reaches the age of 15 years or completes grade nine, whichever comes first.

Sectoral Determination 13 further states that no person shall employ a child in work that is inappropriate for a person of that age; work that endangers the child’s life or that endangers the child’s welfare, education, physical or mental health, or moral or social development. This includes work that deprives children of their childhood, their potential and their dignity and is work that is harmful to their physical and mental development. It is work that affects children’s health and personal development and interferes with their schooling and has a negative impact on children’s well-being.

There are further requirements for employers in the agricultural sector when employing a child between the ages of 15 and 18. The child may not work:

• after 18:00 and before 06:00 the next day;
• more than 35 hours in any week (7 hours per day if the child works 5 days a week); and
• with chemicals.

An employer may also not make any deduction for accommodation in respect of a farm worker who is under 18 years of age.

Burden of proof regarding child labour

The employer bears the burden of proving that when a child is employed, the child is not younger than 15. An employer must further be able to prove that a proper investigation has been conducted to determine the age of the child. Such an investigation may be carried out as follows:

• requesting the parents/guardians of the child to provide a copy (preferably certified) of the child’s birth certificate;
• obtaining a copy of the child’s birth certificate or ID document if the child already has one; or
• if none of these documents exist, an affidavit from the parents indicating the child’s date of birth.

It is advisable to request a copy of the birth certificate before the person is employed. The employer is required to keep a record of the name, date of birth and address of every farm worker under the age of 18 for a period of three years.

Employers may not employ children under the age of 15. Employment of children between the ages of 15 and 18 must be carefully considered and only applied in exceptional circumstances.

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Maintaining discipline in the workplace is essential for both productivity and a positive working environment. While employees have certain rights, employers equally hold the right to take disciplinary action against those who contravene workplace rules, policies, or procedures. It remains the employer’s responsibility to enforce discipline in order to preserve a harmonious environment.

Disciplinary action should be guided by the principle of progressive discipline, with the aim of taking reasonable steps to correct or improve employee behaviour. This is achieved through a structured process of issuing warnings and holding consultations. A disciplinary warning is a formal written statement from the employer informing the employee that their conduct is unacceptable. It also serves to notify the employee that continued failure to meet required standards will result in more serious measures being taken.

What is a consolidated final written warning?

A consolidated final written warning is a general final written warning issued to an employee who repeatedly commits various forms of misconduct. Typically, this warning is given to an employee who already has multiple valid written or final warnings for different categories of offences and then commits yet another offence.

A consolidated final written warning may be issued where an employee continues to breach workplace rules or policies despite having a record of several warnings on file.

Where an employee’s conduct demonstrates an ongoing disregard for workplace rules and discipline, the issuing of a consolidated final written warning may be justified. Employers are not expected to indefinitely tolerate repeated misconduct simply because the offences differ in nature or are unrelated to one another.

At some point, the employer is entitled to make it clear that any further misconduct — regardless of its nature — will no longer be tolerated and may result in dismissal. In appropriate circumstances, this type of warning may also be issued as an alternative to dismissal following a hearing process.

Such a warning is grounded in the principle of continued breach of good faith and workplace rules. Any conduct that undermines the relationship of trust between employer and employee is regarded as highly serious.

Red flags

Negativity in the workplace can spread quickly, influencing other employees and ultimately harming the business as a whole. Employers must remain alert to red flags that may signal underlying labour relations issues. Such early warning signs are often evident when an employee’s usual conduct or behaviour changes noticeably.

To safeguard against these risks, employers should establish clear workplace rules and consistently follow proper procedures in all labour matters. Acting proactively is essential to maintaining stability and preventing small issues from escalating into larger problems.

Employers who are dealing with such matters are encouraged to consult with their labour law advisor or legal representative for advice specific to their circumstances before taking any action.

Contact the LWO at 086 110 1828 with every disciplinary matter to ensure you follow the correct procedure every time.

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Counselling is a recognised form of progressive discipline in the workplace, yet its value is often underestimated when employers consult with employees about workplace infringements.

Schedule 8 of the Labour Relations Act (LRA) sets out the Code of Good Practice: Dismissal, which provides guidelines for employers considering disciplinary processes and measures. Item 6(2) of the Code emphasises that the purpose of disciplinary action is corrective. This is achieved primarily by addressing an employee’s conduct through graduated measures, which, depending on the circumstances, may include counselling.

Counselling can therefore be understood as a structured consultation with an employee, aimed at informing them of the problem and attempting to correct and improve the employee’s behaviour going forward.

Principle of progressive discipline

The principle of progressive discipline recognises that the purpose of discipline is to help employees understand the standards expected of them. Employers must take reasonable steps to improve or modify behaviour through the systematic use of counselling sessions and warnings.

A written warning notifies an employee that a workplace rule or procedure has been breached. It further advises that if the same misconduct is repeated within a specified period, more serious disciplinary action may follow. However, the issuing of a written warning does not necessarily mean that the employee fully understands the employer’s disciplinary code or the broader consequences of the misconduct for the employer and fellow employees.

Counselling is an appropriate disciplinary measure in situations where an employee’s conduct does not align with a workplace rule or standard, or where the employee is unaware of a rule regulating behaviour. It is also suitable in cases where the misconduct is not of a serious nature.

Example

A common example is an employee who repeatedly arrives late for work. In terms of the LWO’s template disciplinary code, an employer may issue a written warning after the first instance of reporting late for work. Following a third incident and after a final written warning has been issued, the employee may be dismissed (after a disciplinary hearing) for a fourth occurrence. In such circumstances, the employee is made fully aware that persistent late arrival is unacceptable and that the employer has applied progressive discipline. The question, however, is whether the employee truly understands why punctuality is important.

In these cases, counselling as part of progressive discipline can be valuable for both employer and employee. During a formal counselling session, the employer can explain the negative impact and consequences of reporting late for work, while the employee is given the opportunity to provide reasons for their repeated lateness. The consultation also creates space to discuss possible solutions and practical steps to resolve the issue.

Keep record

As with warnings, it is essential to keep a record of counselling consultations with an employee, and any decisions or suggestions made must be documented in writing. This serves as proof that counselling has been applied as a form of progressive discipline. If the misconduct persists, the employer will have no choice but to implement other measures of progressive discipline, such as written warnings.

Is it always appropriate?

Is counselling always appropriate? No. Counselling as a form of progressive discipline is not suitable in cases of serious misconduct, such as theft, gross negligence, or dishonesty. These transgressions typically constitute serious misconduct in most workplaces and often result in an irreparable breakdown of the trust relationship between employer and employee.

Progressive discipline — and counselling in particular — can be effective when the employee makes a genuine effort to avoid repeating the misconduct and to correct their behaviour.

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In many South African workplaces, light-hearted banter and playful interactions can help build team spirit and reduce stress. However, when this behaviour turns into horseplay, such as rough pranks, pushing, teasing, chasing or practical jokes, it can quickly create serious problems. What one person sees as harmless fun may embarrass, intimidate or offend another, especially in diverse environments where humour is interpreted differently. The common defence of “It was just a joke” often fails when the conduct undermines someone’s dignity or safety.

What is horseplay?

Horseplay in the workplace refers to unsafe or reckless behaviour by employees that is often dismissed as “just having fun”. Horseplay is characterised by rough, rowdy or playful behaviour that is inappropriate in the workplace and may lead to accidents, injuries or disruptions. Examples of horseplay include pushing, shoving, pranks, practical jokes, wrestling, using company property and equipment for jokes or engaging in activities that can endanger the safety and well-being of individuals.

Employers often deal with situations such as where racist language and racist jokes, cartoons or memes including communication are shared in the office – this is a prime example of horseplay that may amount to hate speech.

The hidden dangers of horseplay

Horseplay carries a real risk. Physically, it distracts employees and can lead to workplace accidents, injuries or even damage to equipment, particularly in factories, workshops or sites with machinery and vehicles. In addition to safety concerns, it frequently crosses into harassment.

What the law expects from employers

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (2022), issued under the Employment Equity Act (EEA) is clear.

The Code defines harassment as unwanted conduct that undermines dignity, creates a hostile working environment for one or more employees, or is intended to—or has the effect of—inducing submission through actual or threatened adverse consequences. Such conduct must be related to one or more grounds on which discrimination is prohibited under section 6(1) of the EEA, encompassing both listed and arbitrary grounds.

Section 6(1) of the EEA prohibits unfair discrimination in the workplace. It provides that no person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds. These grounds include race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth, or any other arbitrary ground.

Employers have a legal duty under section 60 of the EEA to take reasonable steps to prevent such behaviour. They are required to address harassment complaints promptly and within a reasonable timeframe; failure to do so may result in employers being held vicariously liable.

Practical ways to stop horseplay

Employers should adopt a proactive approach to effectively address horseplay. Clear policies must explicitly prohibit rough play, unsafe pranks and any conduct that could be perceived as harassment. These rules should be communicated during onboarding and regular training.

Managers must lead by example and consistently enforce workplace policies to uphold boundaries against harassment. Regular awareness sessions, toolbox talks and risk assessments help employees distinguish between acceptable fun and inappropriate behaviour.

Equally important is encouraging open reporting without fear of retaliation, followed by prompt and fair investigations.

Fair discipline and positive alternatives

Disciplinary action should be applied consistently, ranging from warnings for minor incidents to more serious sanctions where horseplay causes harm or is repeated. At the same time, employers can encourage positive alternatives, such as organised team‑building activities that strengthen relationships without compromising safety or respect. The ultimate goal is to foster a workplace culture in which employees feel valued, safe and able to focus on their tasks.

Creating a respectful workplace culture

A professional environment does not need to be rigid or devoid of humour. With clear boundaries and mutual respect, teams can enjoy a positive atmosphere while avoiding the risks associated with horseplay. By addressing these issues seriously, employers not only reduce the likelihood of injury and legal claims but also foster stronger, more cohesive teams where everyone’s dignity is upheld.

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The earnings threshold, as provided for under section 6(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA), has once again been increased. With effect from 1 May 2026, the threshold is set at R269 600.90 per annum (approximately R22 466.74 per month), increased from R261 748.45, which had been in effect since 1 April 2025.

Employers must always be clear on which employees earn above the earnings threshold and which fall below it, as this distinction directly affects what may or may not be agreed upon in terms of conditions of employment. As with any legislative change, employers should take the opportunity to review existing contracts and confirm that they remain aligned with the latest requirements.

Applying the threshold

When applying the threshold, it is essential to understand what qualifies as “earnings.” In simple terms, this refers to an employee’s regular annual remuneration before deductions, including income tax, pension contributions and medical aid contributions. It excludes contributions made by the employer, as well as subsistence allowances, transport allowances, achievement awards and overtime payments.

In practice, this is where mistakes often occur, making it essential to double‑check how remuneration is structured before determining whether an employee falls above or below the threshold.

Legislation

The threshold plays a significant role across three key pieces of labour legislation: the Basic Conditions of Employment Act 75 of 1997 (BCEA), the Labour Relations Act 66 of 1995 (LRA) and the Employment Equity Act 55 of 1998 (EEA). For employers, the key takeaway is that employees earning above the threshold are treated differently with respect to certain rights under these laws:

• BCEA

Starting with the BCEA, employees earning above the threshold are, to a certain extent, excluded from several provisions relating to working hours and related matters. These include ordinary working hours, overtime, compressed working weeks, averaging of hours of work, meal intervals, daily and weekly rest periods, payment for work on Sundays, night work and payment for public holidays.

For employees earning below the threshold, these areas are strictly regulated and the protections provided by the BCEA apply in full. For those above the threshold, however, such matters may be determined by agreement. This gives employers greater flexibility to structure working arrangements in line with operational needs, but it also underscores the importance of properly drafted contracts to avoid uncertainty or disputes in the future.

• LRA

Under the LRA, the position is similar when dealing with fixed‑term employees. Certain provisions relating to labour brokers and fixed‑term employees do not apply where such employees earn above the threshold.

The most notable section is LRA section 198B, which governs fixed‑term contracts. Employees earning above the threshold are excluded from the protections afforded to certain employees earning below it, particularly the requirement that fixed‑term contracts must be converted to permanent employment under specified circumstances.

• EEA

Under the EEA, the threshold primarily affects how disputes are resolved. The earnings threshold determines the legal route for dispute resolution. In cases of unfair discrimination, disputes must first be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. If unresolved, employees ordinarily have the option to refer the matter either to the CCMA for arbitration or to the Labour Court for adjudication.

However, employees earning below the threshold may refer disputes concerning unfair discrimination to the CCMA for arbitration under section 10(6)(aA)(ii). By contrast, employees earning above the threshold must refer such disputes to the Labour Court for adjudication, except in certain cases (such as unfair discrimination on the grounds of sexual harassment), where arbitration at the CCMA remains available.

In the broader context, the earnings threshold is adjusted almost annually and employers should monitor these changes closely to avoid compliance issues in the future. More importantly, knowing whether employees fall above or below the threshold enables employers to make informed decisions regarding contracts, working hours and overall risk management.

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Die Minister van Indiensneming en Arbeid, Nomakhosazana Meth, het op 4 Februarie 2025 die aanpassing in die nasionale minimumloon vir 2025 in die Staatskoerant gepubliseer. Die nuwe nasionale minimumloon wat reeds op 1 Maart 2025 in werking getree het is vasgestel op R28.79 per normale werksuur. Hierdie loon is van toepassing op werknemers wat resorteer onder die bestek van die Wet op Basiese Diensvoorwaardes, Wet 75 van 1997 soos gewysig (WBDV).

Nasionale Minimumloonkommissie

Ingevolge die Nasionale Minimumloonwet Wet, Wet 9 van 2018 soos gewysig (NMLW), beoordeel en hersien die Nasionale Minimumloonkommissie (die Kommissie) jaarliks die nasionale minimumloon. Die Kommissie maak daarna ‘n aanbeveling aan die Minister van Indiensneming en Arbeid om die loon aan te pas.

Die kriteria wat die Kommissie oor die algemeen gebruik om die voorgestelde verhoging te bepaal, is die verbruikersprysindeks (VPI) plus ‘n addisionele persentasiepunt (gewoonlik 1.5%). Sleutelfaktore soos voorgeskryf deur die NMLW word ook in ag geneem en sluit dit die volgende in: inflasie en lewenskoste, loonvlakke en kollektiewe bedingingsuitkomste, die Bruto Binnelandse Produk (BBP) en produktiwiteit. Verdere faktore sluit in werkgewerlewensvatbaarheid en die impak op indiensneming, asook openbare insette.

Die Departement van Indiensneming en Arbeid het op 18 Desember 2024 in ‘n mediaverklaring aangedui dat die Kommissie in sy voorlopige verslag ‘n jaarlikse verhoging in die nasionale minimumloon in die omgewing van VPI + 1.5% vir 2024/2025 ondersoek.

Gegewe inligting wat ten tye van die artikel deur Statistieke Suid-Afrika reeds beskikbaar was kan ons sien dat die VPI met 0.1% verhoog het van 2.9% vir November 2024 tot 3.0% vir Desember 2024, wat die nasionale minimumloonverhoging dus op ongeveer 4.4% bereken het. Die Kommissie het in ooreenstemming hiermee, dié voorstel gemaak aan die Minister.

Dit is wel interessant dat die nuwe loon ook in lyn is met die algehele gemiddelde VPI vir 2024 van 4.4% soos gepubliseer deur Statistieke Suid-Afrika vroeër die jaar.

Kwytskelding

As ‘n werkgewersorganisasie weet ons besighede word bedryf in ‘n uitdagende omgewing. Die nasionale minimumloon met gepaardgaande verhogings plaas dikwels bykomende druk op werkgewers aangesien daar nie oor die betaling van die loon onderhandel kan word nie. Dit is wel belangrik dat werkgewers weet dat hul versuim om aan die NMLW te voldoen kan lei tot fel boetes.

Die NMLW bepaal dat indien werkgewers nie die nasionale minimumloon kan bekostig nie, hulle aanlyn kan aansoek doen om kwytskelding (http://nmw.labour.gov.za). Indien kwytskelding toegestaan word, sal die werkgewer steeds minstens 90% van die nasionale minimumloon moet betaal. Kwytskelding is geldig vir ‘n periode van maksimum 12 maande.

As deel van die kwytskeldingsaansoek moet die werkgewer ‘n goeie rede vir die kwytskelding verskaf, asook bewys dat daar sinvol met werknemers en verteenwoordigende vakbond(e) gekonsulteer is waar van toepassing. Die regulasies bepaal verder dat so ‘n aansoek nie toegestaan sal word indien die werkgewer nie aan die bekostigbaarheidselemente ten opsigte van winsgewendheid, likiditeit en solvensie voldoen nie. Die berekeninge vir hierdie toetse word ingesluit as deel van die skedules tot die wet. Kwytskelding sal slegs oorweeg word indien die werkgewer op datum is met alle wetlike betalings, insluitend die Werkloosheidsversekeringsfonds, die Beroepsbeserings- en vergoedingsfonds (Vergoedingskommissaris) en enige ander toepaslike heffings.

Die uitkoms sal die datum van inwerkingtreding van kwytskelding bevestig, asook die tydperk waarvoor dit toegestaan word, die lone wat die werkgewer verplig is om te betaal en enige ander relevante voorwaardes. Indien kwytskelding toegestaan word, moet ‘n afskrif van die kwytskeldingsertifikaat in die werksplek vertoon word, asook aan die betrokke werknemers en verteenwoordigende vakbond(e) waar van toepassing verskaf word. Indien die aansoek onsuksesvol is, sal die werkgewer ‘n kennisgewing ontvang met die redes vir die weiering.

Hierdie artikel is bedoel om geag te word as algemene inligting en is nie bedoel om geag te word as regsadvies nie en werkgewers word aangeraai om ons te kontak om die korrekte minimum loon te bevestig wat op hul spesifieke bedryf van toepassing is, aangesien dit kan verskil van die nasionale minimum loon soos hierbo uiteengesit.

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