Many times, we go to the CCMA or Bargaining Councils only to find out that the employee does not dispute the fairness of their dismissal, but rather that there are monies due which they accordingly want to be paid out. When the employee is asked why they could not resolve the matter with the employer rather than referring to the CCMA, they rarely have a proper answer.

The second part of this article will deal with child and forced labour. The simple advice would be to stay away from both as it is looking for trouble, unless you have a valid reason to be doing so, for example in the arts industry or the like – however, in industries like construction there would not be as much justification…

I will quote the law and then leave my comments where I deem relevant or necessary in (brackets).

CHAPTER 5 – TERMINATION OF EMPLOYMENT

Section 36 – APPLICATION OF THIS CHAPTER

This Chapter does not apply to an employee who works less than 24 hours in a month for an employer.

Section 37 – NOTICE OF TERMINATION OF EMPLOYMENT

(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than

(a) one (1) week, if the employee has been employed for less than six (6) months,

(b) two (2) weeks, if the employee has been employed for more than six (6) months but not more than one (1) year,

(c) four (4) weeks, if the employee

(i) has been employed for one (1) year or more or

(ii) is a farm worker or domestic worker who has been employed for more than four (4) weeks.

(This is standard in any employment contract, even the bad ones I have come across)

(2) A collective agreement may permit a notice period shorter than that required by subsection (1).

(3) No agreement may require or permit an employee to give a period of notice longer than that required of the employer.

(4) Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee. If an employee who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of the employer to the employee in an official language the employee reasonably understand.

(Basically, any termination must be accompanied by some sort of paperwork, whether it be a termination notice due to misconduct, ill-health, poor performance, retrenchment, retirement etc, or in cases of a resignation, there must be a paper to support how the employment relationship was terminated. Should the employee not understand English, the employer must ensure that it is explained to the employee in an official (recognized) language that the employee does understand.)

(5) Notice of termination of a contract of employment given by an employer must

(a) not be given during any period of leave to which the employee is entitled in terms of Chapter Three; and

(b) not run concurrently with any period of leave to which the employee is entitled in terms of Chapter Three, except sick leave.

(An employer may not force an employee to take leave during a notice period in order to not have to pay the employee their legally due leave pay, and the same from the employee’s side, may they not take leave during a notice period and not serve the required notice period and hinder a smooth handover process.)

(6) Nothing in this section affects the right

(a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of

Chapter VIII of the Labour Relations Act, 1995, or any other law; and

(b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law.

(This speaks to dismissal law – should the employee be terminated for misconduct, ill-health performance, retrenchment, retirement etc, may they approach the CCMA or Bargaining Council to seek relief from the employer if they believe the dismissal was unfair).

(2) If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the remuneration referred to in subsection (1), unless the employer and employee agree otherwise.

(An employer may opt to pay-out the employee the notice period instead of it being worked – we call this ‘payment in lieu of’ and this would apply in cases of a retrenchment or resignation where the employer thinks that the employee may cause harm, for example.)

Section 39 – EMPLOYEES IN ACCOMMODATION PROVIDED BY EMPLOYERS

(1) If the employer of an employee who resides in accommodation that is situated on the premises of the employer, or that is supplied by the employer, terminates the contract of employment of that employee

(a) before the date on which the employer was entitled to do so in terms of section 37; or

(b) in terms of section 38, the employer is required to provide the employee with accommodation for a period of one month, or if it is a longer period, until the contract of employment could lawfully have been terminated.

(Should accommodation be seen as part of the remuneration package, and the employment relationship is terminated for whatever reason, the employee must be given a month notice to move out and find alternative accommodation, regardless of whether the employee still performs work in that time or not)

(2) If an employee elects to remain in accommodation in terms of subsection (1) after the employer has terminated the employees contract of employment in terms of section 38, the remuneration that the employer is required to pay in terms of section 38 is reduced by that portion of the remuneration that represents the agreed value of the accommodation for the period that the employee remains in the accommodation.

(This is why it is important to have the value of the accommodation/ benefit predetermined, as well as a clause in the contract of employment that indicates that should the employment relationship be terminated, so will the accommodation and the employee will be required to find alternative accommodation and move out within one month of receiving notice to do so.)

Section 38 – PAYMENT INSTEAD OF NOTICE

(1) Instead of giving an employee notice in terms of section 37, an employer may pay the employee the remuneration the employee would have received, calculated in accordance with section 35, if the employee had worked during the notice period.

Section 40 – PAYMENTS ON TERMINATION

(1) On termination of employment, an employer must pay an employee

(a) for any paid time off that the employee is entitled to in terms of section 10(3) or 16(3) that the employee has not taken;

(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken; and

(c) if the employee has been in employment longer than four months in respect of the employee’s annual leave entitlement during an incomplete annual leave cycle as defined in section 20(1 )

(i) one day’s remuneration in respect of every 17 days on which the employee worked or was entitled to be paid; or

(ii) remuneration calculated on any basis that is at least as favourable to the employee as that calculated in terms of subparagraph (i).

(This indicates that upon termination the employee will be entitled to salary and monies due until the last working day, any leave pay due. Should the employee be on a fixed term contract of sorts, they will be entitled to the same, except the leave payment will be calculated at the above rate – 1 day for every 17 days worked).

Section 41 – SEVERANCE PAY

(1) For the purposes of this section “operational requirements” means requirements based on the economic, technological, structural or similar needs of an employer. (More commonly known as a Retrenchment or Redundancy)

(2) An employer must pay an employee who is dismissed for reasons based on the employer’s operational requirements severance pay equal to at least one week’s remuneration for each completed year of continuous service with that employer, calculated in accordance with section 35. (This is the minimum payment – can be more should the employer wish or it be so negotiated during the consultation process, however it cannot be less).

(3) The Minister may vary the amount of severance pay in terms of subsection (2) by notice in the Gazette. This variation may only be done after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council established under Schedule 1 of the Labour Relations Act. 1995.

(This is very very unlikely to happen)

(4) An employee who unreasonably refuses to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of subsection (2). (The key word here is “reasonable”, and the rule of thumb is whether it affects the employee’s pocket with more than 25%. If applied incorrectly, this could have serious implications and so I would strongly suggest you seek professional consultation on the matter us before choosing to invoke this clause.

(5) The payment of severance pay in compliance with this section does not affect an employee’s right to any other amount payable according to law.

(6) If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to

(a) a council, if the parties to the dispute fall within the registered scope of that council; or

(b) the CCMA, if no council has jurisdiction.

(7) The employee who refers the dispute to the council or the CCMA must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(8) The council or the CCMA must attempt to resolve the dispute through conciliation.

(9) If the dispute remains unresolved, the employee may refer it to arbitration.

(10) If the Labour Court is adjudicating a dispute about a dismissal based on the employer’s operational requirements, the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled, and the Court may make an order directing the employer to pay that amount.

(Clause 6 to 10 is just the dispute resolution process and steps to be followed for such a claim)

Section 42 – CERTIFICATE OF SERVICE

(1) On termination of employment an employee is entitled to a certificate of service stating

(a) the employee’s full name;

(b) the name and address of the employer;

(c) a description of any council or sectoral employment standard by which the employer’s business is covered;

(d) the date of commencement and date of termination of employment;

(e) the title of the job or a brief description of the work for which the employee was employed at date of termination;

(f) the remuneration at date of termination; and

(g) if the employee so requests the reason for termination of employment.

(Nothing major here – this is very common and often required at the Department of Labour for a UIF claim).

Section 43 – PROHIBITION OF EMPLOYMENT OF CHILDREN

(1) No person may employ a child

(a) who is under 15 years of age; or

(b) who is under the minimum school-leaving age in terms of any law, if this is 15 or older.

(2) No person may employ a child in employment

(a) that is inappropriate for a person of that age;

(b) that places at risk the child’s well-being, education, physical or mental health, or spiritual, moral or social development.

(3) A person who employs a child in contravention of subsection (1) or (2) commits an offence.

(Very simple – child labour is wrong and is an offence. There are exceptions to this of course but rather contact us for clarity if you are unsure, so that you remain on the right side of the law).

Section 44 – EMPLOYMENT OF CHILDREN OF 15 YEARS OR OLDER

(1) Subject to section 43(2), the Minister may, on the advice of the Commission make regulations to prohibit or place conditions on the employment of children who are at least 15 years of age and no longer subject to compulsory schooling in terms of any law.

(2) A person who employs a child in contravention of subsection (1) commits an offence.

Section 45 – MEDICAL EXAMINATIONS

(1) The Minister may, after consulting the Commission make regulations relating to the conduct of medical examinations of children in employment. (Very unlikely to happen, unless exceptional circumstances and reasoning can be shown).

Section 46 – PROHIBITIONS

(1) It is an offence to

(a) assist an employer to employ a child in contravention of this Act; or

(b) discriminate against a person who refuses to permit a child to be employed in contravention of this Act.

Section 47 – EVIDENCE OF AGE

(1) In any proceedings in terms of this Act, if the age of an employee is a relevant factor for which insufficient evidence is available, it is for the party who alleges that the employment complied with the provisions of this Chapter to prove that it was reasonable for that party to believe, after investigation, that the person was not below the permitted age in terms of section 43 or 44.

Section 44 – EMPLOYMENT OF CHILDREN OF 15 YEARS OR OLDER

(1) Subject to section 43(2), the Minister may, on the advice of the Commission make

regulations to prohibit or place conditions on the employment of children who are at least

15 years of age and no longer subject to compulsory schooling in terms of any law.

(2) A person who employs a child in contravention of subsection (1) commits an offence.

Section 45 – MEDICAL EXAMINATIONS

(1) The Minister may, after consulting the Commission make regulations relating to the conduct of medical examinations of children in employment. (Very unlikely to happen, unless exceptional circumstances and reasoning can be shown).

Section 46 – PROHIBITIONS

(1) It is an offence to

(a) assist an employer to employ a child in contravention of this Act; or

(b) discriminate against a person who refuses to permit a child to be employed in contravention of this Act.

Section 47 – EVIDENCE OF AGE

(1) In any proceedings in terms of this Act, if the age of an employee is a relevant factor for which insufficient evidence is available, it is for the party who alleges that the employment complied with the provisions of this Chapter to prove that it was reasonable for that party to believe, after investigation, that the person was not below the permitted age in terms of section 43 or 44.

As always, please contact us if your organisation requires input or assistance on any labour-related matter. We are happy to help!

By Gerhard Kotzé