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

How do I claim unpaid salaries from my employer?

Question received via freeadvice@legalhero.co.za: 

Hi, Im working for a construction company as a manager.
The company owes me december,january, march and april salaries.
I lost because of not paying my debts. Can you please advise me on what steps to take so that i dnt lose the money im being owed and must the company pay me interest because of late payment?

Dear writer

We are awfully sorry to learn of your misfortune and are happy to offer some basic advice on what can be done to secure your salary and receive your dues.

1)      Department of Labour and not the CCMA/ Bargaining Counsel:

Many people make the mistake of taking the matter up with the CCMA or their Bargaining Counsel. However, as a general rule, all money related matters such as unpaid salary, overtime pay, leave pay, etc. are referred to the Department of Labour.

This is your best option as the Department of Labour offers assistance free of charge. The aforesaid is, however, not an option available to you if you are in senior management and/ or earn more than R205 443.30 per year. This monetary threshold is revised from time to time by the Minister of Labour and published in the Government Gazette.

Should you qualify, the Department of Labour will appoint an Inspector to investigate your complaint of nonpayment, contact your employer and possibly issue your employer with a compliance order ordering payment plus interest by a certain date. In terms of section 70 of the Basic Conditions of Employment Act, you need to inform the Department of Labour of your unpaid salary/ salaries within 12 months.

2)      Going to Court:

Employees can also claim an unpaid salary via the Small Claims Court provided the outstanding salary does not exceed R15 000. The Small Claims Court is free of charge, no legal representation is allowed and the authority of its order is equal to that of a Magistrate’s Court. Visit the Magistrate’s Court in your area and speak to the Clerk regarding the Small Claims Court and a Section 29 Letter of Demand, as each Magistrate’s Court also acts as a Small Claims Court. Going to Court is also the route to take if you were an independent contractor (and not an employee).

Should the monies plus interest owed to you be in excess of R15 000, the matter must be heard by the Magistrate’s Court. You will, however, need a lawyer to assist you with the relevant court documents and procedures.

Your lawyer could also decide to take the matter to the Labour Court. Your employer will receive notice of this application and may decide to oppose the matter or not. Once the Labour Court is convinced of your case, it can issue an order instructing your employer to pay all outstanding monies to you before a certain deadline.

For some the battle does not end here. Should your employer fail to pay in terms of the court order, one needs to go back to court! What often happens next is that the Sheriff will come knocking to draw up a list of all the employer’s assets to be sold in execution in order to cover your unpaid monies.

3)      Interest:

In terms of section 75 of the Basic Conditions of Employment Act, an employer must pay interest on any amount due in terms of the Prescribed Rate of Interest Act. The aforesaid act has recently been amended. Prior to 1 August 2014 the interest rate was 15.5% per year but this has now been changed to 9%.

Remember that an employer only has a grace period of 7 days to pay employees in terms of section 32(3) of the Basic Conditions of Employment Act. Once your salary is more than 7 days late, we advise employees to take the matter up internally by filing a grievance and discussing the matter with senior management.

Should the aforesaid fail, you next step would be to either file a complaint of nonpayment at the Department of Labour should you qualify, alternatively, contact a private attorney/ your legal cost insurance company to get the ball rolling with regards to letters of demand in order to pursue a Civil case.

Lastly, but very importantly, remember that a Civil claim (money claim) prescribes/ expires/ becomes invalid within 3 years since payment/ acknowledgement of the debt provided no legal action was instituted. This means that your unpaid December 2014 salary will prescribe in December 2017. After December 2017 your employer can raise the defense of prescription and you will lose the December money owed to you! We therefore advise that you take action as soon as possible.

We hope this helps and sincerely wish you all the best with this endeavour.

Kind regards,

Legal Hero

www.legalhero.co.za

Double Rate on Public Holidays

Good morning and a very Merry Christmas from all at Legal Hero!

Today is also a public holiday, which should make you smile, even if you don't believe in Christmas.

Hats off to all working today, for whom this cartoon comes specially wrapped.

Wishing you and your loved ones a blessed day,

Legal Hero

www.legalhero.co.za

NOTES

Please have a look at the Basic Conditions of Employment Act for further reading (section 18 in particular).

Not all employees are covered by the Basic Conditions of Employment Act. Members of the National Defence Force, the National Intelligence Agency, the South African Secret Service, employees earning a gross salary of more than R172 000 per year, unpaid voluntary employees who do work for a charitable organisation, etc. are excluded.

Unlawful Deductions - Labour / Salary

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