Section 34 of the Basic Conditions of Employment Act (BCEA) outlines the prerequisites that must be satisfied before any deductions can be made from an employee’s remuneration.

What are the consequences of deducting money from the employee’s remuneration without his/her consent?

The employee has the right to raise a dispute internally regarding the alleged unlawful deduction. If such a dispute is raised internally, it must be dealt with, and feedback must be provided to the employee. If the dispute is not resolved, the employee has the right to refer the dispute to an external dispute resolution.

Which external dispute resolution has the right to deal with a dispute regarding alleged unlawful deductions?

Section 77 of the BCEA provides that the Labour Court has exclusive jurisdiction over all disputes arising from the Act.  Therefore, in terms of Section 77, the Labour Court has jurisdiction to deal with disputes relating to unlawful deductions.

This principle was confirmed in the matter of O’Reilly v CCMA and Others JR 2395 19, where the Court held that “there is no provision in the BCEA that says that the CCMA has jurisdiction to determine a claim regarding an alleged breach of Section 34(1) of the BCEA”.

Does the CCMA have jurisdiction?

No, the Commission for Conciliation, Mediation and Arbitration (CCMA) does not have jurisdiction to adjudicate a dispute for unlawful deductions.  If a matter is referred to the CCMA where the employee is disputing the deductions made, a point in limine can be raised in which arguments are to be lead that the CCMA lacks jurisdiction and that the matter can only be entertained by the Labour Court.

The CCMA will only have jurisdiction to adjudicate matters that relates to monies owed to an Applicant in terms of Section 73A, which includes salaries, bonuses, amounts due in terms of the National Minimum Wage Act (NMWA), and any amounts that the employer is obligated to pay in terms of the BCEA, but excludes deduction disputes.

Tips to keep in mind:

• Employers may lawfully deduct specific amounts from an employee’s salary with their written consent and if required or permitted in terms of a law, collective agreement, court order or arbitration award.
• The amount deducted from an employee’s salary may not exceed one-quarter of the employee’s remuneration in money (per payment).
• The CCMA lacks jurisdiction to adjudicate disputes regarding Section 34 of the BCEA relating to deductions made, and the dispute should be referred to the Labour Court instead.

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. 

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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.

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The evolution of the workplace has seen a significant shift in recent years, especially with the increasing acceptance of remote work. Initially born out of necessity during global crises such as the COVID-19 pandemic, working from home has transformed from a temporary solution to a permanent feature in many companies in South Africa. From an employer’s perspective, this shift not only challenged traditional business models, but also unlocked an abundance of opportunities and benefits for both employers and employees.

Advantages of remote work

• Productivity: One of the most significant advantages observed by employers with remote work is an increase in productivity. Contrary to initial apprehensions that employees might be less productive outside a traditional office setting, many companies have reported the opposite. With fewer office distractions and reduced commute times, employees are often able to focus better and complete tasks more efficiently.

• Cost savings: Transitioning to remote work can also lead to substantial cost savings for businesses. Reductions in office space requirements translate directly into decreased overhead expenses such as rent, utilities, and office supplies. Similarly, employees benefit by saving on commuting costs, parking fees, and daily meal expenses. For instance, many companies have adopted permanent remote or hybrid models, anticipating savings from reduced office space needs. These savings can then be redirected into other strategic areas such as technology upgrades, employee training, and development, or even increasing profitability.

• Employee satisfaction and retention: Offering remote work can significantly enhance employee satisfaction and retention. It allows employees to maintain a better work-life balance, reducing stress and burnout. Employers have noted that remote work policies have become a key factor in attracting and retaining top talent. Moreover, flexible working conditions are particularly attractive to the millennial and Gen Z workforce, who prioritise flexibility and personal well-being over more traditional workplace benefits.

Navigating challenges

Despite these benefits, remote work does present certain challenges from an employer’s perspective.

• Communication and collaboration: Ensuring communication and collaboration in a remote setting requires the right technology and a shift in management practices. Employers must invest in secure and efficient communication tools and platforms to facilitate seamless teamwork. Additionally, maintaining company culture and employee engagement without physical interaction demands an innovative approach, such as virtual team-building activities and regular check-ins.

• Leadership skills: It is essential to equip managers with the skills needed to effectively lead remote teams. They must excel in managing team dynamics and performance, even in the absence of traditional, in-person interactions. This requires placing a greater emphasis on results over procedures and cultivating a culture of trust and accountability.

Moving forward

As we move forward, the future of work appears to be hybrid – a blend of remote and in-office arrangements. This model promises to combine the best of both worlds, providing flexibility while retaining the benefits of physical office space for collaboration and social interaction. For employers, the key to successful integration of remote work lies in adapting leadership styles, investing in technology, and maintaining ongoing communication with employees.

While the transition to a remote or hybrid work environment poses challenges, the advantages, from increased productivity and cost savings to enhanced employee satisfaction, are compelling. Employers who embrace and adapt to these changes are likely to thrive in the evolving business landscape, marking a significant shift in how work is perceived and conducted in the modern era.

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South African labour legislation provides employees with a multitude of different entitlements to leave including annual leave, sick leave, family responsibility leave, maternity leave, parental leave, adoption leave, commissioning parental leave and study leave. However, there still seems to be many employees that confuse family responsibility leave with other forms of leave, as well as when they are entitled to take family responsibility leave.

Employers in the agricultural sector regularly have queries regarding farmworkers who insist on combining family responsibility leave with other forms of leave, e.g. taking either family responsibility leave and/or sick leave to attend to their children’s routine clinic or hospital check-ups.

Mythbusters #1 & #2:

1.  A farmworker is not entitled to paid family responsibility leave to take a child for a routine check-up visit to a clinic.

2.  A farmworker cannot utilise his/her own sick leave to take a child for a routine check-up visit to a clinic.

Family responsibility leave

Family responsibility leave is a leave entitlement contained in labour law that allows an employee to attend to certain specified familial responsibilities, such as if the employee’s child, or adopted child, is ill. Whereas sick leave allows the employee him-/herself time off from work to recover from an incapacity which renders them temporarily incapable, or medically unfit for work, due to illness or injury.

Mythbuster #3:

3.  A farmworker is not entitled to take family responsibility leave with the birth of their children.

Approximately four years after the law has changed, this popular misconception still exists. Previously the law made provision for an employee who was the spouse, or life partner of a person giving birth to a child, to take three days’ family responsibility leave. However, the law has since changed to allow for the inclusion of other forms of leave. As from the 1 January 2020 farmworkers (other than their spouses/life partners who are on maternity-, adoption- or commissioning parental leave) are no longer entitled to the three days’ family responsibility leave for the birth of their child but are now entitled to unpaid parental leave.

Currently the Basic Conditions of Employment Act (as amended), more commonly known as the BCEA, read together with the Sectoral Determination number 13 (applicable to the agricultural sector), is the main legislative authority on the law surrounding family responsibility leave for farmworkers.

Requirements to qualify for family responsibility leave

In essence the law currently provides that farmworkers are entitled to three days’ paid family responsibility leave per annual cycle, provided that they have been employed for a period of longer than four months and work at least four days per week for the employer.

Family responsibility leave may be taken in full or in days, as it is needed. In the event of a farmworker requesting family responsibility leave, the employer may require reasonable proof, such as a medical or death certificate.

Employers are only required to grant farmworkers paid family responsibility leave, if they have sufficient family responsibility leave left, and only in the following instances:

• When the farmworker’s child is ill; or
• In the event that anyone of the farmworker’s below-mentioned family relatives should pass away:
  • the farmworker’s spouse/life partner,
  • the farmworker’s child/adopted child,
  • the farmworker’s parent/adopted parent,
  • the farmworker’s sibling,
  • the farmworker’s grandparent,
  • the farmworker’s grandchild.

Setting a precedent

The employer does have the discretion to allow for more time off, or to allow a farmworker to take other forms leave such as annual or special leave, which could be paid or unpaid leave, if the farmworker’s family responsibility leave entitlement has been exhausted. However, if the employer does grant additional paid leave in these instances, it can be viewed as an additional benefit to the farmworker, and which might also set a precedent in the workplace and therefore the employer should take care to act consistently in granting similar benefits towards all employees.

By clearing up these misconceptions, we can promote a better understanding of the rights and entitlements of farmworkers in South Africa, ensuring that both employers and employees in the agriculture industry receive fair treatment and support to balance their work and family 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.

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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