Employment Law

While section 29 of the BCEA requires an employer to provide an employee with written particulars of employment, this does not always happen.  The establishment of an employment relationship is however not dependent on the existence of a written employment contract. An employment relationship comes into existence when an offer of employment, made by a prospective employer, is accepted by a prospective employee.  The essential terms of the offer must include (a) what the employee will be doing, (b) when the employee will start work and (c) what the employee will be paid.   If there is a meeting of the minds on these aspects an employment relationship will exist.

This is a form of dismissal where an employee terminates the employment relationship, with or without notice, due to the employer making the continued working relationship intolerable. In other words, the employee is left with no alternative but to resign due to the employer’s conduct. There must be a clear link between the employer’s conduct and the circumstances that induced the employee to resign.  

In cases of constructive dismissal, the employee bears the onus to prove the existence of the constructive dismissal, and it will be determined on an objective basis. 

Examples of instances that could give rise to a successful claim of constructive dismissal include persistent late or non-payment of remuneration and failure to address serious internal grievances such as workplace bullying or sexual harassment.

While an employee is afforded rights, benefits and protection under South Africa’s employment legislation (BCEA, LRA, EEA and UIF), independent contractors are not protected by this legislation and must instead rely on the terms of the commercial contracts with their clients and the civil courts. 

Distinguishing between the two types of relationships is not only important to ensure the parties know their respective rights and obligations, but also to manage business risk. To assist herewith, section 83A of the BCEA and section 200A of the LRA contain deeming provisions which apply to individuals earning below the BCEA earnings threshold.  

Factors that distinguish an employee from an independent contractor are  (1) the degree of supervision and control to which they are subject;  (2) the basis for payment i.e. are they paid on the production of a result or for making their productive capacity available; (3) whether the individual is provided with tools of the trade or whether they need their own tools to render the service; and (4) whether the individual derives income from a single source or from multiple sources.  

It is important to bear in mind that SARS and our labour courts apply slightly different criteria for determining whether someone is an employee and whether their income is subject to PAYE deductions. 

Yes, on condition the employer has fair reason to do so and follows a fair process.

An employer must first investigate whether the individual’s incapacity due to illness  is temporary or permanent. This can be done by obtaining medical reports from, and engaging with the employee and/or the employee’s treating doctor, with the employee’s permission. 

If temporary, the employer must investigate the extent of the incapacity and determine if the working conditions can be amended for the duration of the incapacity.

If permanent, the employer must investigate the possible alternatives short of dismissal. In cases of permanent incapacity, the employer should explore adapting the duties or work circumstances of the employee to accommodate the employee’s incapacity; or assess if suitable alternative employment is possible. 

The degree of incapacity is relevant to the fairness of any dismissal. If the employee is incapable of performing the work due to his/her incapacity, and alternatives have been considered and are not reasonably viable, the employer may dismiss the employee for incapacity.

The employee is entitled to be represented by a fellow employee or a shop steward (if there is a trade union active at the workplace) during any incapacity investigation.

No. Section 20 (5) of the BCEA provides that an employer may neither require nor permit an employee to take annual leave during (i) any other period of leave to which he/she is entitled; or (ii) any period of notice of termination of employment.

Based on the this legislation, annual leave may not run concurrently with a notice period. 

Section 20 (5) of the BCEA provides that an employee may not be required, or permitted, to take annual leave during any other period of leave to which he/she may be entitled, and this includes sick leave. If an employee falls ill while on leave and requests the employer to convert those annual leave days to sick leave, the employer must do so, subject to the employee providing the employer with a genuine medical certificate. 

It is an employee’s duty to consult a medical practitioner and, if the employee is declared unfit for work, those days as specified by the medical practitioner must be credited to the employee’s sick leave period if so requested by the employee.

The answer is not straight forward, The general rule is that it applies to all employers and employees. There are, however, two categories of exclusions. The first category completely excludes the application of the BCEA to certain employees and the second category provides for partial exclusions.

Total exclusions:
The BCEA does not apply to –

• members of the State Security Agency; and
• unpaid volunteers working for an organisation serving a charitable purpose.

Examples of the Partial exclusions (there are many):

• Employees who work less than 24 hours per month for an employer: The BCEA does not apply to these employees in so far as sections 8 to 18 (dealing with regulation of working time); Chapter 3 (dealing with statutory leave); Chapter 4 (dealing with particulars of employment and remuneration) and Chapter 5 (dealing with termination of employment).
• Persons employed on vessels at sea in respect of which the Merchant Shipping Act, 1951 applies are excluded from some sections of the BCEA.
• Persons undergoing vocational training to the extent that any term or condition of their employment is regulated by the provisions of any other law (such as the Skills Development Act).
• Senior managers: Sections 8 to 18 of the BCEA (dealing with matters concerning working hours) do not apply to senior managerial employees. Section 1 of the BCEA defines ‘senior managerial employees’ to mean ‘an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally’.
• Sales staff who travel: Sections 8 to 18 of the BCEA (dealing with matters concerning working hours) do not apply to employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work.
• Employees who earn above the BCEA earnings threshold are excluded from certain sections of the BCEA (such as the right to paid overtime).

The BCEA applies to foreign nationals working in South Africa even if they are working in the country illegally (without a valid work permit). In the normal course, an employer should, before offering employment to a job applicant who is a foreigner, ensure that the person has a valid work permit to work in South Africa. However, in practice, some employers do not do the necessary checks, or in some instances deliberately employ someone who is not legally entitled to work in South Africa. It is often in the latter case that these employees are taken advantage of and denied the minimum entitlements to which employees are entitled in terms of the BCEA and other employment legislation.

The BCEA earnings threshold is a threshold published by the Minister of Employment from time to time.  The earnings threshold is important in that where employees earn below the threshold, they are entitled to rights in addition to those enjoyed by employees who earn above the threshold.

The current (2022) BCEA earnings threshold is R224 080.48 per annum (R 18 673.37 per month).

An employee’s earnings is their regular annual remuneration before deductions. Sections of the BCEA that do not apply to employees who earn in excess of the earnings threshold are –

• section 9 (limiting ordinary hours of work to 45 hours per week);
• section 10 (payment for any overtime worked in excess of 45 hours);
• section 11 (compressed working week);
• section 12 (averaging hours of work);
• section 14 (meal intervals);
• section 15 (mandatory daily and weekly rest periods);
• section 16 (increased pay for working on Sundays);
• section 17(2) (night work); and
• section 18(3) (increased pay for working on Public Holidays).

Overtime may only be worked if an employee has agreed to work overtime. Preferably and most sensibly, such an agreement should be contained in the employee’s written contract of employment. If there is no agreement to work overtime, an employer cannot force an employee to work overtime.

Although the BCEA prescribes a wide range of minimum conditions of employment, there are some benefits/conditions of employment that are not prescribed. These benefits/conditions may, in some instances, be prescribed by other legislation (or by sectoral determinations or collective agreements concluded by bargaining councils) or left up to the employer and employee to negotiate and agree on at a contractual level. Examples of some of the matters not prescribed by the BCEA are as follows:

• Medical aid:  The BCEA does not impose any obligation on employers to provide employees with medical aid. There is also currently no other legislation that legally requires an employer to provide its employees with medical aid. Despite this, a number of employers in South Africa do make provision for medical aid for their employees as employees who have access to quality medical services are usually in better health and, therefore, more productive.
• Pension / Provident Funds: The BCEA does not impose any obligation on employers to make provision for pension or provident schemes. Although the BCEA does not oblige an employer to provide for pension / provident fund schemes at workplaces, some bargaining council agreements provide for this, in which case, both the employer and employee contribute to an industry fund. There is currently no obligatory national retirement fund scheme although one is being contemplated by Government.
• Retirement Age: There is no minimum (or maximum) retirement age prescribed by the BCEA. Employers and employees are free to contractually agree on a retirement age. In most instances, if an employer provides pension or provident fund benefits, it will rely on the retirement age as prescribed in the Rules of that Fund. Otherwise, it is advisable for employers to include an agreed retirement age in their employee’s contracts of employment to ensure that employees are well informed, from the start of employment what the company’s retirement age is.
• Study leave: The BCEA does not provide for study leave. In some instances, employers will, in their discretion, provide for paid study leave for work-related studies.
• Bonuses: Neither the BCEA nor the NMWA imposes an obligation on employers to pay employees bonuses. There are some employers who are covered by a bargaining council or collective agreement that makes provision for the payment of bonuses to employees. Otherwise, it is up to each employer to decide what bonus scheme, if any, it wishes to put in place, and whether such bonuses will be guaranteed or awarded within the discretion of the employer.

The BCEA empowers the Minister of Employment and Labour to publish codes of good practice. Codes of good practice provide guidance on the application of the BCEA and how employers can give effect to their obligations in terms of the BCEA. Codes of good practice do not impose legal obligations in addition to those already contained in the provisions of the BCEA. To date, the following codes of good practice have been published in terms of the BCEA:

• Code of Good Practice on the Arrangement of Working Time, 1998;
• ​Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child, 1998;
• ​Code of Good Practice for Employment and Conditions of Work for Expanded Works Programmes, 2011; and
• Code of Good Practice for the Employment of Children in the Performance of Advertising, Artistic or Cultural Activities, 2005.

The minimum wage is the amount payable in money for ordinary hours worked by an employee and excludes payments of allowances such as transportation, tools, food, accommodation, payments in kind, bonuses, tips and gifts.

It applies to all ‘workers’. ‘Worker’ is defined to mean ‘any person who works for another and who receives or is entitled to receive any payment for that work whether in money or in kind’. The minimum wage does NOT APPLY to volunteers (who perform work but do not receive or are not entitled to receive remuneration). The application of the minimum wage therefore goes beyond the narrow definition of ‘employee’ as contained in other labour legislation. In so far as learners who are employed are concerned, employers must refer to Schedule 2 of the National Minimum Wage Act which sets out the minimum learnership allowance payable to employees subject to the relevant NQF level and credits earned.

The minimum wage is reviewed annually.  The Minister of Employment and Labour announces the new minimum wage in February each year, with an implementation date of 1 March.

An employer can apply to the Department of Employment and Labour for an exemption from having to pay the minimum wage. An application for exemption must be made online in the prescribed format. If an exemption is granted, a maximum of a 10% exemption of the minimum wage will be granted. For example, if the minimum wage is R20 per hour and an employer obtains an exemption certificate, that employer will be required to pay its employees a minimum wage of R18 per hour. An exemption certificate is valid for only one year.