EMPLOYEES: YOUR NEW RIGHTS TO PATERNITY AND PARENTAL LEAVE

It has taken over a year of confusion and delay around when new changes will be implemented, but finally your extended rights to parental leave and to an Unemployment Insurance Fund (UIF) claim have fully commenced.

Here’s an update/refresher –

  • New mothers are still entitled to 4 consecutive months’ maternity leave.
  • New “parents” (which would include fathers and same-sex partners) are entitled to 10 consecutive days’ “parental leave”.
  • An adoptive parent of a child under 2 years old is entitled to 10 consecutive weeks’ adoption leave. Where there are two adoptive parents, the other is entitled to only the 10 consecutive days’ “parental leave” (the two adoptive parents should decide between them who gets 10 weeks and who gets 10 days).
  • Commissioning parents in a surrogacy agreement have the same entitlements as adoptive parents.
  • The law does not force your employer to give you paid leave – the above entitlements are for unpaid leave only. So unless your employment contract entitles you to paid leave you are limited to claiming from the UIF (assuming you are a qualifying contributor). That will give you 66% of your salary subject to a standard earnings cap.

And a note for employers: if you haven’t already done so, take advice now on reviewing your maternity and parental leave policies.

For more information, contact Tracey Mouton at Goldberg & de Villiers Inc on 041 5019800. Email traceym@goldlaw.co.za

 

MIND THE ‘GAP’ OF LESS THAN ONE YEAR

Did you know that, in terms of Section 84 of the Basic Conditions of Employment Act (BCEA), previous employment with the same employer is taken into account when calculating an employee’s length of service, if the break between the 2 periods is less than 1 year.

This becomes important when an employer determines an employee’s entitlement to leave or any payment to be made in terms of the BCEA.

For more information, contact Tracey Mouton at Goldberg & de Villiers Inc on 041 5019800.

 

RESIGNATION IN THE FACE OF DISMISSAL

It happens that an employee resigns with immediate effect after being served with a notice to attend a disciplinary hearing.  The contract of employment however sets out that the employee may only resign on four weeks’ notice.

The question therefore arises as to whether it is possible to hold an employee to the notice period and still run an enquiry? The simple answer to the above is NO.

In the matter of Naidoo & Another v Standard Bank SA Ltd & Another (Labour Court Case No. J1177/19), the Court confirmed that when an employee resigns with immediate effect, the employer loses its disciplinary authority over the employee as such authority only extends to its employees.  Should the employer wish to continue with the enquiry, it must first approach the Court to obtain an order of specific performance; only when such an order has been granted may the employer proceed with the enquiry.

This case has far reaching consequences in industries which allow for the black-listing of dismissed employees.

For any queries in relation to the above please do not hesitate to contact Goldberg & De Villiers Inc, Tel (041) 5019800. E-mail traceym@goldlaw.co.za.

3 FREQUENTLY ASKED QUESTIONS REGARDING RESIGNATION

Although a well drafted contract of employment sets out when a contract of employment may be terminated, most contracts do not cater for the manner in which an employee is to resign.

The following questions arise:

Is a verbal resignation sufficient?

The Basic Conditions of Employment Act sets out that a resignation is to be in writing, unless the employee is illiterate. Case law however has set out that the test is in fact whether the employee has either, by his word or conduct, shown a clear and unambiguous intention not to go on with his contract of employment in that he has acted in a manner which has led a reasonable person to the conclusion that he did not intend to fulfil his part of the contract.

Must the resignation be accepted by the employer?

Not at all. A resignation is a unilateral act and as such does not require any acceptance by the employer party.

May a resignation be withdrawn by the employee?

The obvious answer is that, yes a resignation may be withdrawn. However, an employer does not have to accept the withdrawal of the resignation and as such the resignation would stand. Employers however must be weary of the resignation in anger and subsequent withdrawal. A failure to accept the withdrawal in such circumstances may lead to litigation.

For more information, contact our team of legal experts at Goldberg & de Villiers Inc on 041 501 9800.

THE IMPACT OF THE JUDGEMENT LEGALISING THE USE OF CANNABIS

On 18 September 2018 the Constitutional Court handed down judgement which declared legislation criminalising the use, possession, purchase and cultivation of cannabis unconstitutional.

According to the judgement, the following summarises that which is allowed and that which is not allowed:

What is allowed:

  • An adult may utilise cannabis in private;
  • An adult to may possess cannabis for personal consumption in private;
  • An adult may cultivate cannabis in a private place for his/her personal consumption in

 What is not allowed:

  • A child may not use/possess cannabis under any circumstances;
  • An adult may not use cannabis in public;
  • An adult may not cultivate cannabis for another person’s consumption, for remuneration or not;
  • An adult may not buy or sell cannabis, including medicinal products (oils, tablets etc)

The impact of the Judgement will have far-reaching consequences for employees and businesses alike. What is therefore required is for employers to update policies and procedures to ensure that they are in a position to deal with the ramifications of the judgement and ensure a safe working environment for its employees, visitors and contractors.

In order to ensure that your company is in a position to ensure it is protected, contact Tracey Mouton at Goldberg & de Villiers Inc. on 041 501 9818 (email traceym@goldlaw.co.za) to conduct an HR audit on your policies, make amendments and educate your employees accordingly.

 

 

DOES THE THREAT OF CIVIL AND CRIMINAL ACTION RENDER EMPLOYMENT INTOLERABLE ALLOWING FOR A CLAIM OF CONSTRUCTIVE DISMISSAL

 

In the matter of Nokeng Tsa Tacmane Local Municipality vs Louw, the Labour Appeal Court settled this question.

In brief, Louw had been charged with various acts of misconduct and suspended for approximately six months.  In an attempt to evade the enquiry Louw opted to resign should he be paid three months’ salary as compensation.  The Municipality was happy to accept the resignation but refused to pay Louw a cent.  The Municipality went so far as to inform Louw that his conduct was such that it not only was going to press on with the enquiry but would be considering instituting action for the recovery of the loss he had caused and would be laying criminal charges.

In the face of this information Louw concluded that this amounted to “threats” rendering his employment intolerable and thus resigned.

Louw opted not to attend the enquiry and referred a constructive dismissal dispute to the Bargaining Council.  The Bargaining Council found that Louw had not been constructively dismissed.  However, on review, the Labour Court found that the Municipality’s threat of civil and criminal litigation was sufficient to induce any reasonable employee to resign.  This in turn rendered the employment relationship intolerable and the Labour Court was comfortable that constructive dismissal had been proven.

On appeal however the Labour Appeal Court found that the Municipality’s “threat of possible civil and criminal proceedings” was merely setting out that it reserved its right to take action that it may legally be obliged to take.  This “threat” was neither unreasonable nor untenable.  It was clear to the Court that Louw resigned to avoid disciplinary action and this cannot be considered as constructive dismissal.

The Labour Appeal Court thus found that the threat of civil of criminal action does not render employment intolerable and that constructive dismissal is not proven.

For professional legal advice, contact Director Tracey Mouton at Goldberg & de Villiers Inc on 041 5019800.

 

IMPACT OF THE CHANGES IN LEGISLATION ON LEAVE ALLOWED WHEN A CHILD IS BORN OR ADOPTED

On 1 January 2019 various amendments came into play in relation to both the Basic Conditions of Employment Act and the Unemployment Insurance Act pertaining to the leave which an employee may take when his or her child is born or adopted.

Three additional categories of leave is applicable:

  1. Parental Leave;
  2. Adoption Leave;
  3. Commissioning Parental Leave.

Parental Leave:

  1. An employee who is a parent of a child is now entitled to at least 10 consecutive days parental leave in the event of the following:
  • An employee’s child is born; or
  • An adoption order is granted; or
  • A child is placed in the care of a prospective adopted parent by a competent Court.
  1. Payment in relation to the above is paid subject to the provisions of the Unemployment Insurance Act, unless the employer has contracted with the employee for such leave to be paid by the employer.

Adoption Leave

  1. In respect of adoption leave, the adoptive parent of a child below the age of 2 is entitled to leave as follows:
  • Either adoption leave of at least 10 consecutive weeks; or
  • Parental Leave of 10 consecutive days (as discussed above).
  1. Payment of the adoption leave will be paid out in terms of the Unemployment Insurance Act, unless the employer has contracted differently.
  2. If the adoption order is made in respect of two adoptive parents, the adoptive parents must decide which parent would apply for parental leave and which adoptive parent would apply for adoptive leave. Both parents are thus not entitled to apply for adoptive leave in relation to that specific child.

Commissioning Parent Parental Leave

  1. The commissioning parent in a surrogate motherhood agreement is entitled to commissioning parental leave of at least 10 consecutive weeks or 10 consecutive days parental leave.
  2. Should the surrogate motherhood agreement have two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other apply for parental leave.
  3. Payment of the commissioning parental benefits shall be paid in terms of the provisions of the Unemployment Insurance Act, unless the employer has contracted differently.

Given the changes in categories of leave relating to the birth of a child, it is important that employment contracts and policies are properly updated.

For assistance in this regard, please do not hesitate to contact Goldberg & De Villiers, Tracey Mouton, telephone number (041) 501 9818, e-mail address traceym@goldlaw.co.za.

 

 

 

IT’S “13TH CHEQUE” TIME AGAIN: MUST YOU PAY ANNUAL BONUSES?

 

 

Once again November is upon us, and no doubt employees around the country are starting to dream of all the good things they can do with that “Christmas” bonus coming their way.

If you are one of them perhaps you plan to pay off debt or to re-charge the family’s batteries with a special holiday. Or perhaps you just want to reward yourself and your loved ones with a bit of free-spending on a luxury or two to celebrate a special time of year.

That’s all well and good, but the hard reality is that every year a percentage of employers decide that they can’t afford a sudden doubling of their staff costs and will call everyone together to say something like “Sorry guys, times are really tough so no bonuses this year. You’re lucky to still have jobs”.

Disappointment and anger will no doubt lead to thoughts of CCMA referral and legal action, but none of that is necessary if both employers and employees (a) understand the law, (b) prepare and plan properly, and (c) communicate effectively long before hopes are raised then shattered.

Firstly, what does our law say?

It is a persistent myth that our law automatically forces employers to pay annual bonuses.  Not so – nothing in our labour legislation or employment law says anything of the sort.

What our law does say to employers is this

  • If your employment contracts say you must pay bonuses, your employees have an enforceable legal right to receive them. This is just standard contractual law – both you and your employees are held to your agreements.
  • You must consider not only what your employment contracts themselves provide, but also any company policies, collective agreements and the like.
  • Check also whether any conditions – like profitability of the business or employee performance or contribution to profitability – are specified. And are you given unlimited discretion in deciding whether or not to award bonuses?
  • Even where nothing has actually been agreed as above, you may still be bound to pay annual bonuses if you have paid them regularly in the past. This is because departing from any established practice or custom without prior employee consultation can be seen as an unfair labour practice.  The law aside, employee morale will naturally plummet if expectations of a bonus have been built up over the years but are then dashed at short notice.
  • Be careful of differentiating between employees performing the same or similar work – that’s a recipe for dispute and accusations of unfair labour practice.

Prepare and plan

Employers: Have your lawyer check all your employment contracts and company policies to make sure that you have full discretion and will never be forced to pay bonuses your business can’t afford. Take advice on how you can regularly pay bonuses in good years without creating “rights of expectation” enforceable by your employees in bad years. Use cash flow projections to give you (and your employees) early warning of any inability to pay bonuses this year.

Employees: Don’t spend your bonus until you know for certain how much (if anything) is actually coming your way. And remember that SARS could be taking a bigger than normal slice out of this particular pie – ask your employer for an estimate of how much from the PAYE deduction tables.

Communicate, communicate!

Whichever side of the employment contract you are on, open and effective communication will always be the key to avoiding false hope and bitter disappointment when it comes to bonus time.

So as an employee don’t be shy to ask the boss about his/her bonus plans and if as an employer you have any doubt at all about your business’ capacity and/or willingness to pay bonuses this year, tell your employees what to expect before expectations build up. After, of course, taking legal advice if you have any doubt as to your legal position in this regard – our labour laws are complex and getting them wrong can be costly!

Credit: Law Dot News

For more information and assistance, contact Tracey Mouton, HR Director, Goldberg & de Villiers Inc on 041 5019800.

 

AGING EMPLOYEES : WHEN MUST THEY RETIRE?

“Retirement at sixty-five is ridiculous. When I was sixty-five I still had pimples” (Comedian George Burns)

Record numbers of Baby Boomers are now reaching their 60s, and if you are an employer in any size of business (from the smallest family-owned enterprise to the largest corporate), make sure now that you have a policy in place to handle the thorny question of compulsory retirement.

This is vital – sooner or later you are going to have an employee turning 55 or 60 or 65, and if you think you can just say “Happy Birthday Kim, time for you to retire, see you around” you are in for big trouble.

So what’s the legally required retirement age?

The problem is that nothing in our law imposes a standard retirement age on employees. So trying to force someone to retire at an age that you unilaterally choose (no matter how much you may think that 65 is the universally-accepted gold standard for being put out to pasture) opens you up to a claim for ‘age discrimination’. And that would amount to an automatically unfair dismissal, for which our courts will make you pay dearly.

What our law does say is that “a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity” (our emphasis).

Let’s look at each of those options

“Agreed”: Clearly your best course of action is to have a written agreement with every employee specifying a compulsory retirement date. Ideally have such a clause in every new employment contract, and if any existing contracts have no such clause, negotiate one now (it’s essential to do this bilaterally not unilaterally – see case below).

“Normal”: You can always try to convince a court that you have, through past practice in your business, established a “normal” retirement age. You will have to prove that you have consistently applied this age in previous retirement situations and that the employee in question was aware of it. Far safer of course is to have in place a formal “retirement policy”.

Whatever you do, don’t act unilaterally

A recent Labour Court case shows how dangerous it can be to try to alter any term of employment without negotiating and agreeing it with your employees –

An employee’s employment contract made no direct mention of a compulsory or automatic retirement age, but his employer’s ‘Human Resources Policy and Procedure Manual’, which was incorporated into and formed part of his contract, stipulated a retirement age of 65.

This was reduced to 60 when the Manual was replaced by a “Terms and Conditions of Employment” policy. The new policy excluded employees “expressly entitled to retire at 65 in terms of their individual contracts of employment”.

The employee’s services were terminated when he turned 60 and he approached the Labour Court for assistance.

The Court held that the employer is “not permitted to unilaterally amend terms and conditions contractually agreed to” and was therefore in breach of contract. The employer must now reinstate the employee retrospectively to the date of termination, his compulsory retirement age being confirmed at 65.

What to do when retirement age is reached

Preferably your employment contracts should specify an agreed procedure to be followed on retirement date, but in any event don’t let the date just float past. Rather, if you agree on an extension period, have your lawyer draw up an amended employment contract to avoid any uncertainty or dispute.

Employees – know your rights

Age discrimination is just one form of automatically unfair discrimination prohibited by law. Stand up for your rights if you think you are being discriminated against, directly or indirectly, “on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”

Credit: LawDotNews

For assistance and more information, contact the professional legal team at Goldberg & de Villiers Inc on 041 5019800.

 

DAGGA – JUST HOW LEGAL IS IT NOW?

 

 

The media has been awash with reports (sometimes conflicting, often vague) of what the recent Constitutional Court ruling actually means in practice.

Whether you agree with the ruling or not, and whether or not you personally have ever had (or intend to have) anything to do with cannabis/marijuana/weed/dagga, we all need to be aware of the implications.

Here’s some food for thought –

  • Err on the side of caution: Parliament has two years to change the relevant Acts to cure their constitutional defects. Until it does so, there will be many grey areas and your best course of action is always going to be to err on the side of caution. You really don’t want to be funding a test case in court, particularly if your job or your clean criminal record is at stake.
  • The limits of the ruling: The Court’s decision has not comprehensively “legalised dagga”. What it has done is to provide that, until the Acts are amended, it could not be a criminal offence for an adult person –

o          To use or be in possession of cannabis in private for his or her personal consumption in private; and

o          To cultivate cannabis in a private place for his or her personal consumption in private.

Any form of supply or purchase, even in private, and any possession or use by a minor (under 18), anywhere, would still put you at risk of a criminal record and heavy penalties.

  • The danger of arrest: As the Court put it, if a police officer finds a person in possession of cannabis and thinks it is not for personal consumption, then “He or she will ask the person such questions as may be necessary to satisfy himself or herself whether the cannabis he or she is in possession of is for personal consumption.  If, having heard what the person has to say, the police officer thinks that the explanation is not satisfactory, he or she may arrest the person.  Ultimately, it will be the court that will decide whether the person possessed the cannabis for personal consumption.” Similar considerations will, said the Court, apply to questions around cultivation.

There is also no clarity on what will be considered to be a “private place” other than the Court’s comment that there are places other than “a person’s home or a private dwelling” where the right to privacy would apply.

The bottom line – you still risk arrest on suspicion of having or growing more dagga than a police officer considers reasonable for your personal consumption, or in a place that you consider “private” but that a police officer doesn’t.

  • Driving under the influence: Our law provides that: “No person shall on a public road … drive a vehicle or occupy the driver’s seat of a motor vehicle of which the engine is running … while under the influence of intoxicating liquor or a drug having narcotic effect”. Effective testing by police if you are pulled over is another matter entirely, but does anyone really want to risk a stay in a police cell while a test is arranged?
  • In the workplace: Since the court’s ruling applies only to “private places” it seems unlikely that employees could ever get away with use or possession in a standard office situation. But what about an employee pitching for work whilst still under the influence? Practical issues of proof aside, it is probably an extremely bad idea. Employees have a general duty to perform their functions properly and doing anything to compromise that probably puts you at risk of at the very least a disciplinary warning. Of course anyone in a job where 100% sobriety is a non-negotiable necessity (think heavy machinery operators, surgeons, pilots and the like) risks a lot more than just a warning.

Employers: a final note

Having a properly-drawn “sobriety policy” in place will reduce the risk of confusion and dispute in the workplace. If you have a policy in place already, ask your lawyer to check that it adequately covers you in light of these new developments.

Credit: LawDotNews

For more information contact Tracey Mouton of Goldberg & de Villiers Inc on 041 501 9800.

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