Frequently Asked Questions About Conditions of Employment
Questions and answers to help you understand the basic conditions of employment.
DO EMPLOYEES ACCRUE ANNUAL LEAVE DURING MATERNITY LEAVE?
One of my employees is going on maternity leave for 4 months. Will she accrue annual leave during this period?
Yes, her annual leave does accrue during this time.
If an employer does otherwise they are in breach of the Employment Equity Act which prohibits an employee from being unfairly discriminated against. Not allowing annual leave to accrue during maternity leave would be considered unfair discrimination.
DOES COSMETIC SURGERY QUALIFY MY EMPLOYEE FOR SICK LEAVE?
One of our employees went for liposuction surgery. Does she qualify for sick leave or must we deduct it from her annual leave?
The doctor didn’t specify if the procedure was for medical or cosmetic reasons. Can we investigate this to make our decision?
Paid Sick leave is available to employees who are unable to work due to illness or injury. Voluntary surgery for cosmetic purposes doesn’t necessarily entitle an employee to claim paid sick leave.
An exception, perhaps, is if there are unforeseen health complications because of the surgery. Check that the surgery wasn’t medically required as it might not have solely been for cosmetic reasons only.
A medical certificate should at the very least state that the employee was unable to work due to sickness or injury for the duration of the absence. The doctor doesn’t have to disclose the nature of the illness.
CAN I ADD AND IMPLEMENT A RESTRAINT OF TRADE CLAUSE TO MY STAFF'S CONTRACTS AFTER THEY HAVE BEEN EMPLOYED FOR A WHILE?
Short answer, yes you can add it to their terms & conditions but it has to be agreed by both parties as this is a new condition of employment that wasn’t originally included in the employment contract.
An employee cannot be forced to sign the restraint of trade but have the discussion to get their buy-in.
CAN I CHANGE EMPLOYMENT CONTRACTS IF I CAN’T AFFORD TO PAY BONUSES?
No, you can’t unilaterally change their terms and conditions of employment, which includes their entitlement to a bonus if its guaranteed in their contracts. Discuss the issue with employees and try to get their consent.
If they don’t consent, you either live with it and risk a claim for unpaid remuneration or a strike or take action, e.g. initiate discussions about retrenching the employees who refuse to accept the changes (on the basis that the changes are required to keep your business viable). Your decision to retrench must be final and not a ploy to get them to accept your changes.
Get detailed advice on the issue should it become quarrelsome.
WHAT PROCEDURE DO I FOLLOW IF AN EMPLOYEE DIES?
There is no specific procedure to follow but it may be that the executors of the deceased’s estate, if any are appointed, may lay claim to termination payments such as accrued leave pay from you. Until that happens, you are not obliged to make payment to the family.
If the employee was a member of a retirement fund, then the fund may investigate whether any payments are due from it to the deceased’s beneficiaries. You could also assist the family to claim death benefits through UIF.
CAN MY EMPLOYEE DEFEND A RESTRAINT OF TRADE?
Restraint of trade undertakings in principle are valid and enforceable. To be able to get out of the restraint of trade undertakings the employee would have to demonstrate that its unreasonable.
The employer can seek to enforce the restraints by going to Court and, inter alia, requesting an interdict prohibiting the breach of the restraints. The employee would then have to prove that the restraints are unreasonable which can be a costly exercise.
CAN MY EMPLOYEE REFUSE TO WORK OVERTIME?
If there is no signed agreement to work overtime, and the employees refuse to work overtime, you can’t force them to do so or discipline them for refusing, as they have no obligation to work overtime.
If you have an agreement in place and they refuse to work overtime, you can discipline them for refusing to work overtime (refusing to adhere to a reasonable instruction).
Where there is no agreement in place to work overtime, and the employees won’t agree to work overtime, you can consider retrenchments if your business’s operational requirements necessitate employee working overtime.
You must make this decision fairly and finally and not just threaten it to get them to agree to work overtime.
HOW MUCH OVERTIME CAN YOU ASK YOUR EMPLOYEES TO WORK?
At some point, you will need your employees to work overtime. But there are strict laws about what you can and can’t ask your employees to do.
You can’t require or allow an employee to work more than 10 hours’ overtime a week (BCEA S10(1)(b)
You can negotiate an agreement with your employee or the representative union to work longer overtime, but even then you can’t require or allow an employee to work more than 12 hours in total on any one day.
Remember: If you are covered by a bargaining council agreement or sectoral determination, you should check how much overtime is permitted for your industry or sector as the provisions could be different from those of the BCEA.
It is important here to reach out to us to guide you in following the right procedure.
HOW DO I IMPLEMENT A DRESS CODE IN MY BUSINESS?
Our Company has a “casual business” dress code, but one of our employees doesn’t seem to understand what is appropriate to wear to the office.
We would like to set up a dress code policy, but have no idea where to start, without trampling on employees’ rights, egos, and flair, which we recognise is a very personal thing. Please can you advise?
The first step would be to communicate the change and why you would like to have this policy implemented.
Your policy must contain details of what the employees can wear to work.
Make sure that your dress code is in line with anti-discrimination regulations.
Present the draft code to your employees and management for their input. This will ensure better buy-in from staff and the policy will be received more positively.
Make sure that new hires are made aware of this code during the onboarding process.
CAN I EXTEND MY CURRENT EMPLOYEE'S NOTICE PERIOD?
It does happen that in certain industries where you work with specialised people who are hard to replace that the option to increase the employee’s notice period seems justifiable.
If the employee is already in your employment then you need to be cognisant of the fact that the change can’t be implemented unilaterally. Both parties are bound to the contract and consent will have to be obtained from the employee if you wish to extend their notice period.
WHAT IS MOONLIGHTING?
There is no statutory definition for moonlighting. It is when your employee works for another person or has another job for which he is getting paid, over and above what you pay him.
Moonlighting itself is not illegal. The underlying principle is that the employee has a duty to act in your best interest – which means devoting all their time and attention to your business during working hours, and not engaging in any conflicts of interests, during or after work hours.
You can prevent your employee in his contract of employment from working for anyone else or becoming involved with anything or anyone else that could prejudice you.
You can discipline the employee if he breaches that obligation.
CAN SICK LEAVE BE USED FOR DOCTOR’S APPOINTMENTS?
If an employee takes time off that doesn’t qualify as any type of leave (e.g. sick leave, annual leave etc.), you don’t have to pay the employee for the time off. However, by agreement with the employee, you can deduct it from their annual leave entitlement.
Doctor’s appointments could follow the same route i.e. you can deduct the time off by agreement from his annual leave entitlement.
HOW DO I CALCULATE WORKING HOURS?
5 day worker – Employees can work up to a maximum of 45 ordinary hours of work per week. This includes meal intervals.
Thus employees can work 9 ordinary hours a day if they work a 5 day week. They would be entitled to 1 hour meal intervals which may, by agreement, be reduced to 30 minute meal intervals.
CAN I FORCE AN EMPLOYEE TO TRANSFER TO ANOTHER BRANCH?
Despite the fact that the employee’s contract of employment states that “The company reserves the right to move the employee to another branch within the business, should it be required”, the employer must still consult the employee about this transfer. If the employee refuses the transfer to the other branch, you must initiate a section 189 process. This is a restructuring process.
It may mean that you will need to retrench the employee that refuses to transfer to the other branch. You need to tell them that this is based on the operational requirements of the business.
The position you are offering this employee should be a reasonable alternative position. The terms & conditions of employment, salary, job functions, level of responsibility and job grade should remain the same.
DOES INJURY ON DUTY COUNT AS NORMAL SICK LEAVE?
You must treat the leave the employee requires to recover from an injury on duty and/or for an operation arising from such an injury as normal sick leave.
This is the case even though the employee was injured on duty and has submitted a claim for compensation to the Commissioner under COIDA.
If the employee has exhausted their sick leave, any further leave they require to recover from the injury would be annual leave or unpaid leave unless the employer decides to grant her further paid sick leave.
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Should you need assistance with anything labour related, please do not hesitate to contact him. 5 star service is what you will get. Thank you Tiaan for all your help.”
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