10 FAQ’s Answered By an HR Consultant

Having people in your employ is no easy task. Anyone owning a business and having people on their payroll will tell you that it’s an area needing constant attention.

Providing HR Advice is part and parcel of my duties as an HR Consultant and I enjoy the fact that I can support businesses and make their lives easier.

So I decided that I am going to compile the top 10 frequently asked questions I get asked by my clients and share them here.

Hopefully, they can be of use to you and your business so here it goes.

1. 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.

2. 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 it’s 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.

3. 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 it’s 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.

4. 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.

Make sure that you have the correct clauses in your contract of employment. An HR Consultant can assist you with that.

5. 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.

6. 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 their annual leave entitlement.

7. 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.

8. HOW MUCH ANNUAL LEAVE IS AN EMPLOYEE ENTITLED TO?

The minimum amount of leave is 15 working days per annum (21 consecutive days) for a 5 day per week employee on full pay. This is calculated in each annual leave cycle or in each 12 months from the date of employment.

Annual leave automatically accrues to an employee.

The leave accrues at the rate of:

• 1 hour for every 17 hours worked,
• 1 day for every 17 days worked,
• Or 1.25 days per month

The Basic Conditions of Employment refers to 21 consecutive days. If you check the calendar you will see that if your employee works a 5 day week, then 21 consecutive days is 15 working days.

If your employee works a 6 day week, they are entitled to 21 consecutive days. This means they will receive 18 working days on full pay. Their 18 working days will work out to the equivalent of 21 consecutive days.

9. HOW DO I DEAL WITH ABSENTEEISM?

This is a regular struggle for Employers and can have a major impact on businesses when it comes to their daily operational requirements.

Absenteeism over a day or two without leave or without good reason is regarded by law as minor misconduct.

If not careful then this behaviour easily becomes a trend among Employees but you as the Employer do not have to tolerate such behaviour. It should just be dealt with correctly.

In instances of absenteeism and abscondment, an employee must be afforded a hearing prior to his/her employment being terminated (other than in exceptional circumstances).

The employee should be notified of the disciplinary hearing and cautioned that the hearing will continue in his/her absence if he/she elects not to attend the hearing. In the event that the employee fails to attend the disciplinary hearing and depending on the reason for the failure to attend, the hearing can continue in the employee’s absence and a decision can be made.

These cases tend to end up at the CCMA quite easily and then the Employer is found not to have followed the correct procedure.

It is important here to reach out to an HR Consultant who understands labour relations to guide you in following the right procedure.

10. WHAT INFORMATION SHOULD A MEDICAL CERTIFICATE CONTAIN IN ORDER TO BE VALID?

A medical certificate must state that the employee was unable to work for the duration of the absence from work on account of sickness and/or injury. The detail of the account does not have to be given as it is considered doctor/patient confidentiality.
It must be issued and signed by a medical practitioner or any other person certified to diagnose and treat patients and who is registered with a professional council. This doesn’t include only medical doctors, and other health practitioners may qualify. Some (but not all) “sisters” may qualify.

Knowing what to do and staying abreast of all the changes in regulation takes time and dedication. I will always advise business owners to rather reach out to an HR Consultant for peace of mind knowing that they are getting accurate up to date advice.

If there is something I want you to know about me right away, it’s that I have a passion for supporting business owners. I believe in the future of South Africa and that there are so many opportunities out there to be successful and to make a change to our economy.

I want to be part of that change by providing businesses with core HR and Labour Solutions that will not only result in legislative compliance but actually positively impact their bottom line.

Over the years I have gained practical HR experience working in various sectors such as mining, construction, financial services, and corporate legal. As a business owner myself, I can relate well to businesses and what their needs are.