Frequently Asked Questions About Recruitment to Retirement
Questions and answers to help you understand recruitment and retirement
DO I HAVE TO TELL CANDIDATES WHY I DIDN’T HIRE THEM?
If an applicant requests it, it’s prudent to provide brief written reasons why you don’t appoint a person to a position he/she applied for. The person’s chances of success depend on whether or not he/she can show that the non-appointment was due to factors which were discriminatory.
This will depend on the facts and circumstances of the particular matter.
Bear in mind that discrimination cases go to the Labour Court.
CAN I EMPLOY A FOREIGN NATIONAL WHILE THEY ARE WAITING FOR THEIR WORK PERMIT?
The Immigration Act 13 of 2002 says an employer is not permitted to employ an illegal foreigner or a foreigner whose status does not permit him to be employed. In other words, a foreigner who is in possession of a study permit, an accompanying spouse permit or a relative’s permit isn’t allowed to work in South Africa.
In addition, a foreigner in possession of a work permit to work for one company can’t work for another company.
If the employee is illegally hired then they can be deported and never permitted to return to SA, and your company would incur a significant fine and/or imprisonment if the Department of Home Affairs became aware of such conduct.
WHAT DOES THE LAW SAY ABOUT RETIREMENT AGE?
A retirement age is either agreed between the parties in a contract of employment, or a handbook which forms part of the employee’s terms and conditions of employment, or it’s the normal retirement age, which is the age at which employees would normally retire at the company, in the absence of an agreement.
BENEFITS OF CONDUCTING EXIT INTERVIEWS
The information you get from exit interviews can be used to improve employee retention or reduce employee turnover with both immediate and long-term effects.
Immediate effects include reducing costs of replacement, saving time and improving organisational performance, all of which contribute to the long-term effect of improving profitability and returns to your stakeholders.
Exit Interviews will help you to:
• Reduce costs of recruitment and retraining that impact negatively on the company’s bottom line.
• Save time by not having to replace, retrain staff, and redistributing the workload left by the departing employee.
• Save time and money on potential productivity losses.
• Determine the real reasons why people leave and try to address it hoping to reverse the employees’ decision to leave.
• Minimise the risk of litigation by ensuring that all the possible processes have been covered in the termination process.
• Collect key information to amend and approve the job description.
• Identify and manage trends and underlying company issues which may be the leading cause for high staff turnover.
• Review overall recruitment and selection process.
• Measure the effectiveness of performance management systems.
• Enhance morale and staff satisfaction by showing the company’s concern for the departing employee’s welfare.
QUESTIONS YOU MUSTN’T ASK IN AN INTERVIEW
1. What is your HIV status?
Don’t ask this question unless there is an actual inherent requirement that the employee must be HIV negative.
2. What is your sexual orientation?
The answer won’t have any relevance to your decision to employ the person as it doesn’t impact on any inherent requirement.
3. Have you ever been arrested or do you have a criminal record?
This question will only be relevant if you are employing in the banking and finance sector.
4. What are your religious believes?
A question about religion may lead to unfair discrimination if the employer and the applicant have opposing religious beliefs.
5. Are you pregnant or planning to fall pregnant within the next few months?
You can’t ask this question unless it is an inherent job requirement. Don’t assume it’s a fair question just because you are obliged to give her maternity leave.
6. Are you a South African citizen?
You can ask if the candidate has a work permit, and is legally allowed to work in South Africa.
ARE PRE-EMPLOYMENT MEDICALS LEGAL?
Section 7 of the Employment Equity Act (EEA) states that medical testing of an employee is prohibited unless:
a) Legislation permits or requires the testing; or
b) It’s justifiable based on medical facts, employment conditions, social policy, and the fair distribution of employment benefits or inherent requirements of the job.
But you can’t test an employee to check their HIV status unless you are authorised to do this by the Labour court. An applicant for a vacant position falls within the definition of an employee. There is no legal requirement for medical testing unless it plays a role in the employee’s ability to do the job.
It needs to be justified in terms of the conditions of employment or required for equitable distribution of employment benefits. There must be a law that specifically states that its required for that specific job.
HOW LONG MUST WE KEEP CV’S
Section 31 of the BCEA outlines the specific employee records that an employer must keep. You must keep such records for a period of 3 years from the date of the last entry in the record.
You don’t have to retain records of external applicants for employment (such as CV’s and interview packs) in terms of employment legislation. The same applies to internal applications for employment (e.g. people seeking promotion internally). It is advisable to do so, for a few months, however, in case you have to deal with disputes in relation to them.
CAN I RE-EMPLOY A RETIRED EMPLOYEE ON CONTRACT?
Yes you can. Be sure to act consistently though and remember that you may be creating a precedent – there may be other pensioners who would also like to be ‘kept on’. Use operational requirements as the test e.g. you need pensioner X to finish off the project whereas you have already got a full-time replacement for pensioner Y.
Also be aware that some benefit funds might impose restrictions on staff that are over retirement age, so check with your medical aid and pension/provident fund, if applicable.
STEPS TO FOLLOW IF YOU HAVE HIRED AN EMPLOYEE ILLEGALLY
1. Make sure the employee is actually working for you illegally. Check the employee’s permit or contact the Department of Home Affairs to find out if the employee is allowed to work legally in South Africa.
2. When the status is confirmed and the employee is indeed working for you illegally you end the employment immediately. Don’t tell the employee that they are fired and kick them out as this will be seen as automatically unfair! Draft a dismissal letter which explains why you are ending the work relationship. Refer them to their employment contract that mentions that in order to fulfil their obligations they must have a valid work permit while in the employ of the employer.
3. If you want the employee to carry on working for you, draft a letter of appointment, this time with a suspensive clause. Give them a specific amount of time to get a new work permit. If they don’t get one in time, don’t renew their contract.
4. Help the employee to get a new permit if you keep them employed. In order to get a work permit, the Department of Home Affairs will need an offer of employment letter from you. If you don’t help them, you will be standing in their way to fulfil the suspensive clause. This will put you in hot water with the Labour Court for acting unfairly. So make sure you as the employer help foreigners get the new permit.