Lawbuntu Learn

Welcome to Lawbuntu Learn. Browse through the different legal topics to learn more about the law in South Africa.

Labour

Why is an employment contract important?

A contract of employment is important so that you and your employee know what each of your rights and responsibilities are.

More importantly if a dispute ever arises the contract can be used to prove what the terms of the employment relationship were.

Who is an employee?

Not every person who works for someone else is an employee.

A person who works for another person is, generally speaking, either an employee or an independent contractor.

The various Acts that govern labour law in South Africa apply to employees only, and not to contractors.

Some of the more important of these Acts are: the Basic Conditions of Employment Act; the Labour Relations Act; and the Unemployment Insurance Fund Act.

Section 1 of the Basic Conditions of Employment Act (the BCEA) and section 213 of the Labour Relations Act define an employee as:

Definition of Employee

'any person, excluding an independent contractor, who works for another person (this includes a company) or for the State and who receives, or is entitled to receive, any remuneration;

and any other person who in any manner assists in carrying on or conducting the business of an employer.’

The definition of an employee in the Unemployment Insurance Fund Act (the UIF Act) is essentially the same.

As can be seen the definition of an employee is very broad.

If you are unsure whether a person who works for you is an employee or an independent contractor contact a law firm from our list of recommended law firms.

Click here to contact a law firm recommended by Lawbuntu.

Foreign Employees

How do you know if a foreigner is in the country legally or not?

In order to legally employ a foreigner he or she must:

  1. be in possession of a valid passport or asylum permit;
  2. that has been stamped by a South African immigration official when he or she entered the country; and
  3. have a permit that allows him or her to work fixed to one of the pages of his or her passport (or have an asylum permit).

A foreign person who does not have a passport that has been stamped by a South African immigration official is in the country illegally- unless that person has an asylum permit- and it is a crime to employ such a person.

Even if a foreigner’s passport has been stamped by South African immigration officials it is illegal to employ that person unless he or she also has a permit that allows him or her to work in his or her passport.

Asylum permits are different. An asylum permit is normally issued on a separate piece of paper and is not placed in a foreigner’s passport. This is because people who are applying for asylum often do not even have a passport.

It is a good idea to check the provisions of the Immigration Act of 2002 before employing a foreigner.

Can I legally employ a person who has a visitor’s permit?

No. Section 11 of the Immigration Act forbids persons with visitors’ permits from working in South Africa.

Can I legally employ a person who has a study permit?

Yes, but only for part-time work. Section 13 of the Immigration Act of 2002 forbids persons who have study permits from doing any work other than part-time work.

Can I legally employ a person who has an asylum permit?

Yes.

If I employ an illegal foreigner is that person still allowed to ‘take me to the CCMA’ if I fire him or her?

Yes. Not only is it a crime to employ an illegal foreigner, but that person can still ‘take you to the CCMA’ if you dismiss him or her.

The BCEA

What is the Basic Conditions of Employment Act (the BCEA)?

The BCEA sets out the standard conditions of employment for every employee in South Africa. This includes domestic workers.

It applies to all employees in South Africa and all employers must comply with its provisions unless: an Employee works for you for less than 24 hours per month; or is employed as a senior manager; or is employed as a salesperson and travels to customers’ premises and regulates his or her own working hours.

The BCEA sets a minimum floor for leave and overtime etc. You can agree with your employee to improve these terms.

Although you can agree on better terms of overtime and leave, you cannot exclude the provisions of the BCEA from a contract of employment, even if both you and your employee agree to.

Working Hours & Leave

Do the provisions of the BCEA apply to temporary or part-time workers?

Yes. Provided that they work for an employer for more than 24 hours in a month.

What is ‘overtime’?

In terms of section 9 of the BCEA an employee can work a maximum of 45 hours in a week- and no more than 9 hours in a day.

If your employee works more than 45 hours in a week or more than 9 hours on a single day he or she is entitled to overtime.

Overtime, according to section 10 of the BCEA is at least one and a half times your employee’s normal hourly wage. For example, an employee who normally receives R20/hour is entitled to not less than R30/hour for any overtime.

Do I have to pay an employee more to work on a Sunday?

Yes. According to section 16 of the BCEA an employee who works on a Sunday, but is not expected to work on Sundays usually, must be paid double what he or she would normally be paid. For example, an employee who normally receives R100 to work on a weekday must be paid R200 to work on a Sunday.

But that is only if the employee is not expected to work on Sundays often. An employee who regularly works on Sundays is entitled to less overtime.

If an employee often works on Sundays then her employer must pay her one and a half times what the employee normally receives. So, for example, an employee who normally receives R100 to work on a weekday, and who is expected to work on Sundays regularly, must be paid R150 to work on a Sunday.

Are all employees entitled to overtime?

No. Senior employees or management employees are not entitled to overtime.

Neither are employees who work for you less than 24 hours a month.

Employees who earn more than R172 000 in a year are also not entitled to be paid overtime.

How much leave is an employee entitled to annually?

An employee who works for you for more than 24 hours per month is entitled to at least 21 days of leave for every 12 months worked.

Or

By agreement only, one day of annual leave for every 17 days worked.

This is paid leave.

The UIF

What is the UIF?

The UIF is the Unemployment Insurance Fund.

If you lose your job the Fund will pay you a monthly amount based on what you earned before you lost your job.

The Fund pays this amount to you for a few months after you have lost your job.

But the Fund will only pay you out if you and your employer have contributed to the Fund.

All employees and employers are required to pay into this Fund.

The employer must pay an amount equal to 1 % of the employee’s salary to the Fund, over and above paying the employee his or her salary every month.

The employer must also deduct an amount equal to 1% of the employee’s salary and pay this over to the Fund every month.

In short, the employer should pay an amount equal to 2% of the employee’s monthly salary to the Fund every month, 1% of which comes from the employer’s pocket and 1% of which comes from the employee’s pocket.

Who must pay UIF?

If you employ someone for more than 24 hours a month you must contribute to the Fund- even if your employee is in South Africa illegally.

It is the employer’s responsibility to make sure that these amounts are paid to the Fund. Accordingly the employer is entitled to deduct 1% a month from the employee’s salary in order to make these payments to the Fund on the employee’s behalf.

How do I register with the UIF?

It’s actually a pretty simple process to register to pay UIF for an employee who is employed at your home.

  1. Go to the Department of Labour’s website and download and complete the following two forms:
    • The UI-8D; and
    • The UI-19.
  2. Scan and return the completed forms to the UIF, this can be done by email to webmaster@uif.gov.za.

That is the employer’s bit done. The UIF should then send you a letter confirming your registration and providing you with their bank details.

Now you simply need to pay your and the employee’s contribution over to the UIF monthly. This can be done either by way of EFT or you can set up a monthly debit order.

If you wish to set up a monthly debit order you may need to create a profile on uFiling. UFiling is a web service offered by the UIF that allows employers to manage their relationship with the UIF online. Aside from being able to set up a debit order, employers can also update their details, or their employees’ details, online.

Follow this link to register for uFiling: https://www.ufiling.co.za/.

Firing People

According to section 185 of the LRA every employee has the right not to be unfairly dismissed.

What is crucial about this right is that if you intend to fire an employee not only must you have a good reason to fire this person, you must also do the firing in a manner that is fair.

At the very least fairness requires that you give your employee a proper hearing and a proper chance to explain their side at the hearing, before you fire that person.

If you fire a person unfairly, either because you did not have a good reason to fire that person, or, even if you did, you did not fire that person in a manner that was fair then your ex-employee can sue you for unfair dismissal.

If you are unsure as to exactly what steps to follow to ensure that a dismissal is fair click here for a list of attorneys recommended by Lawbuntu to help you with this.

NEED HELP DEFENDING A LAWSUIT?

Lawbuntu Lawyers

Employee

Why is an employment contract important?

A contract of employment is important so that you and your employer know what each of your rights and responsibilities are.

More importantly if a dispute ever arises the contract can be used to prove what the terms of the employment relationship were.

What if I didn’t sign a contract with my employer?

A written employment contract is unnecessary.

You are still an employee- and have all the rights and obligations that go along with being an employee in terms of the various labour laws- even if you did not sign a written contract of employment with your employer.

But if you ever take your employer to court it may be harder to prove that you are an employee without an employment contract.

Working Hours And Leave

Am I entitled to overtime?

If you work more than 45 hours in a week for an employer you are entitled to be paid overtime. Unless you:

  • Earn more than R172 000 per year before deductions; or
  • Are in senior management; or
  • Are a salesperson and regulate your own working hours.

Overtime is at least 1.5 times your normal salary. So, for example, if your employer normally pays you R20/ hour, you should be paid at least R30/ hour for every hour of overtime that you work.

Am I entitled to get paid more if I work on a Sunday?

Yes. You must be paid at least double your normal salary if you work on a Sunday- unless you work, or are expected to work, on a Sunday often.

If you are often expected to work on a Sunday then you must be paid 1.5 times your normal salary when you work on a Sunday.

Again, if you earn more than R172 000 per year before deductions you are also not entitled to be paid overtime for working on Sundays.

Am I entitled to paid leave?

If you work for an employer for more than 24 hours per month you are entitled to take paid annual leave.

If you work full-time you are entitled to at least 21 days paid leave annually.

If you work part-time you are entitled to at least one day of paid leave for every 17 days that you have worked.

Being Fired

What if my employer has fired me?

You must have been fired fairly. Fairness means that there must have been a good reason to fire you (for example, theft, insubordination), and that your employer followed a fair process when he or she fired you.

As a general rule in order for the process to be fair your employer should have given you a hearing before he or she fired you.

If you think that you have been fired unfairly you may take your employer to the CCMA.

Can I still sue my former employer if I am working in South Africa illegally?

Yes.

Click here for a list of law firms recommended by Lawbuntu to assist you with your labour issues

Lawbuntu Lawyers