Tips when faced with employment issues

Some people live in constant fear of being fired. Who is going to pay for the bond, the car, the children’s school fees, etc.? What if my boss has a bad day and decides to fire me at the drop of a hat? If it can happen in The Devil Wears Prada, it can probably happen to me, too…?

The good news: South African Labour Law favours reasonableness and (more often than not) the employee. A fair dismissal means two things. Not only must a dismissal be substantively fair (in other words for a good reason), but it must also be procedurally fair. This is where most employers falter: the dismissal was for a good reason but was done in an incorrect/ unfair manner! This could lead to the CCMA or Labour

Court ordering your reinstatement, compensation paid to you or even both!

Procedurally speaking, the process is normally as follows: verbal warning, written warning, final written warning and then … dismissal. Only in extreme cases (assault or gross negligence, for example) may an employer skip a few steps and opt for a dismissal. Between each of the aforementioned steps, however, another important protector-of-the-employee lies: the disciplinary hearing. Remember that the outcome of a disciplinary hearing can be a verbal warning, written warning, final written warning or dismissal in serious cases.

5 Tips when faced with that ‘Notice to attend a Disciplinary Hearing’ document:

1. Request the formal written complaint that led to the disciplinary enquiry in the first place. This will help you prepare a proper defence. The formal written complaint will go into a lot more detail than the few sentences you’ll find in the ‘Notice to attend a Disciplinary Hearing’ document, which typically merely lists the charge(s) against you in a sentence or two. Note that you have a right to the formal written complaint, however, employers often fail to attach it to the ‘Notice to attend a Disciplinary Hearing’ document.

2. Ask whether you may bring in a legal representative. Most employers will, however, decline as they also have the freedom to do so. Your next best bet is a union representative or a colleague. You do have the right to be represented by a fellow worker. At the very least, use any colleague to sit in and take notes and write EVERYTHING down. This will serve you well should you take the matter to the CCMA at a later stage.

3. Make sure that the Chairperson is someone outside the organisation and does not work for/ follow demands of the complainant (person whose formal complaint led to the disciplinary enquiry against you).

4. Use the formal written complaint to prepare your questions to the complainant and his/her witnesses in advance. The complainant and his/ her witnesses should state their case first, providing you the opportunity to cross examine the complainant’s witnesses.

5. Make a special note of the time it takes for the Chairperson to come to a conclusion. Did the Chairperson take enough time (preferably a few days) to consider all the evidence or did the Chairperson perhaps have a preconceived outcome in mind? Remember that the Chairperson must use the evidence presented by the two parties (you and the complainant) to determine your guilt on a balance of probabilities. Your previous work record/ written warnings/ compliments/ mitigating factors are excluded from this decision and only come into play after the Chairperson is convinced of your guilt and before the Chairperson decides on a proper sanction (written warning, final written warning, dismissal).

One last thing, remember your rights when it comes to a disciplinary hearing. Note that these rights must be provided to you in writing prior to the hearing. Make a large note of it if this is not the case!

You have the right to:

a. Be present at the hearing. If you fail to attend the hearing, the matter needs to be postponed to a new date. If you are then, however, absent once more, the enquiry may proceed in your absence;

b. Have enough time to prepare your defense against the charges;

c. Be represented by a colleague of your choice or by a shop steward/ union official;

d. Ask as many questions as you wish, cross examine the witnesses called by the complainant and also to have witnesses of your own present and ready to be asked questions;

e. An interpreter if necessary;

f. Appeal the decision of the Chairperson internally before proceeding to the CCMA.


* Attention all Legal Hero Policyholders: please contact us the moment your receive a notice to attend a disciplinary hearing. Dial 0861 22 99 22 and select voice prompt 4. 

Maternity UIF

Expecting a baby is a wonderful blessing. It’s a time to reflect on potential names, tiny baby outfits, your birth plan, etc. 

You shouldn’t waste any precious time on worrying about your income whilst on maternity leave. Let’s get those out of the way so you can get back to focusing on what’s important. 

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My employment contract refers to unpaid maternity leave. Is this legal?

Your employer is not legally obliged to continue salary payments during your maternity leave. Therefore, an employment contract referring to unpaid maternity leave is legal. Your employer does, however, have a legal obligation to keep your post available by not replacing you. Note that a temporary employee may fill in for your during your time away.

Your employment contract could, however, stipulate favourable maternity benefits including partial/ full maternity leave salaries or a maternity leave period of six months, for example. If this is the case, your employer has to deliver, failing which you may take a copy of the relevant contract to the Department of Labour and/ or you have 90 days to report an unfair labour practice to the CCMA/ relevant Bargaining Counsel for conciliation.

Sometimes an employment contract does not say anything on the topic of maternity leave. This is where the basic/ minimum conditions in terms of the Basic Conditions of Employment Act (BCEA) kick in:

· you may take maternity leave of up to four consecutive months

· your employer does not have to remunerate you during your time out of office

· you may start your maternity leave up to 1 month before your due date, sooner if you have a medical letter confirming that it is unsafe for you to work

· Should you elect not to make use of your maternity leave, you may return to work no sooner than six weeks after delivery. If you had hoped to return sooner, you will need a medical letter declaring that you are fit to start working again.

Should your employment contract stipulate that you only have two months’ maternity leave or set out any other condition that is less favourable than that of the BCEA; this section is void and unenforceable by the employer. Your employment contract may only place you in a better position than the basic minimums. It may not leave you worse off!

How do I survive without my income?

The Unemployment Insurance Fund (UIF) also provides for maternity payments.

When was the last time you studied a copy of your salary slip? Please have a look at the ‘deductions’ section, where you should notice a monthly UIF contribution of 1% of your pay. A further 1% of your pay is not deducted from your salary but paid by your employer. In total SARS/ the UIF therefore receives a 2% contribution of your salary to potentially in future provide you with short-term relief. Your employer has a legal obligation to pay this contribution over to fund/ SARS before the 7th of each month.

Important to remember:

· Commission based earnings have no monthly UIF contributions and therefore commission based earners (unless you also earn a basic), cannot claim UIF;

· You can only claim maternity UIF if you are receiving zero or partial income from your employer during your maternity leave. If you have favourable employee benefits paying you a full salary whilst you are on maternity leave, you will be unable to claim maternity UIF as well.

· You are excluded from claiming UIF if you work for the National Defense Force, SA Secret Service, National Intelligence Agency or for a charity as an unpaid volunteer – as you also then do not make UIF contributions from your salary.

How much UIF can I claim?

This will depend on whether you are receiving partial/ zero income whilst on maternity leave, the size of your salary as well as the total amount of months you have been contributing towards the fund. A rough estimate is that you could receive between 38 – 58% of your monthly salary.

No tax is deducted from maternity UIF and payment is made directly to your personal bank account.

Where do I claim UIF and what forms do I need?

You need to visit the Department of Labour closest to you. This initial application can be made eight weeks prior to your due date or within and no later than 6 months since the birth of your baby.

Remember to take your ID and a medical certificate confirming your pregnancy, alternatively, the baby’s birth certificate with you. You will furthermore need to complete the following forms:

· UI2.3 Application for maternity benefits

· UI2.7 Confirming the remuneration received whilst in employment

· UI2.8 Banking details confirmation

· UI4 Payment continuation document. Once your claim has been approved, this is a document one needs to submit on a monthly basis to request another payment


Hope this helps and congratulations to you and your partner!

Kind regards, Legal Hero www.legalhero.co.za. 

Responsibilities towards a domestic worker

A Sectoral Determination issued by the Department of Labour for 1 December 2015 - 30 November 2016:

Note: if you are not listed in Area A, you fall under Area B. 

Screenshot/ photo cred: www.labour.gov.za

Notes:

As a Legal Hero policyholder, we can assist with a tailored domestic worker contract, salary slips and advise as to which other documents should form part of your file. Contact us today.

Yours faithfully,

Legal Hero

www.legalhero.co.za
0861 22 99 22
join@legalhero.co.za/ legal@legalhero.co.za/ admin@legalhero.co.za

Victimization in the workplace

Notes:

While you have 90 days to refer an unfair labour practice to the CCMA, you only have 30 DAYS to refer an unfair dismissal.

Chapter two of the Employment Equity Act also sets out a few practices that could amount to victimization (preventing employees from joining trade unions or preventing employees from engaging in union activities, prejudicing employees due to a legitimate disclosure, bribing employees not to exercise his/her rights in terms of the Labour Relations Act, etc.).

Have a look at section 5, 185 and 186(2) of the Labour Relations Act (unfair labour practices that could amount to victimization).

Wishing you an empowering Tuesday,

Legal Hero

wwww.legalhero.co.za  
0861 22 99 22
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One of life's villains: being dismissed/ retrenched

It’s a nasty feeling, especially if you have reason to believe that the dismissal was unfair. Did you know that about 100 000 cases were referred to the CCMA last year? Legal Hero saves the day by arranging CCMA/ Labour court representation for its policyholders (no excess fees when claiming).

Free tips:

• An unfair dismissal must be referred to the CCMA within 30 days.
• The CCMA procedure entails two 'hearings:'

a)      Conciliation (where no legal representation is allowed and the presiding officer only makes suggestions);

b)      Arbitration (legal representation is allowed and the arbitrator makes a binding order).

• For a dismissal to be fair, it must be both substantively and procedurally fair. Substantive fairness means that a valid reason was proved by your boss (misconduct, incapacity or operational requirements). Procedural fairness means that a fair procedure was followed (warnings, disciplinary hearing, etc.).
• At a disciplinary hearing, the employee has the right to:

a)      Be present (the employee needs to provide the employer with a reasonable excuse for postponement);

b)      Bring his/her own witnesses;

c)       Request an interpreter;

d)      Not have the person with whom there is conflict chair the hearing;

e)      Question and cross-examine the witnesses relied on by the employer;

f)       Make reference to mitigating factors (first offence, apology, only breadwinner, years of loyal service to the employer, etc.).

• If you have been retrenched, you may visit the CCMA for conciliation (no binding order) but the matter may proceed to the Labour Court for a binding order.
• A dismissal is automatically unfair if it is due to discrimination on race, sex, religion, etc. Similar to retrenchments, one may approach the CCMA BUT for a binding order the matter must proceed to the Labour Court.
• Unlawful deductions from your salary by your employer OR outstanding salaries must be referred to the Department of Labour in your area (and not the CCMA). 

Knowledge is power. 

Legal Hero

www.legalhero.co.za 

Mission statement

Legal Hero steps up to secure justice in an uncertain world where legal threats are likely, skills are scarce and only a minority can afford the law. Determined to leave this world a better place, Legal Hero endeavours to not only provide quality legal assistance at an affordable monthly premium, but also legal education, so that everyone, in time, may become their own hero.