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Labour Law

What The Law Says About Employee Leave And Absence

What are your employees entitled to when it comes to leave?

Madelein Taljaard

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Dealing with absent employees can be one of the most frustrating parts of managing your workforce when you are trying to run a tight ship.

This is especially true if you’re running a small business where there isn’t anyone else to pick up the slack when a key team member is away on planned or unplanned leave.

Yet employees are people with lives outside their day jobs and should be treated with understanding when they need time off.

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They can get pregnant, fall ill, take time off to further their studies, or be called away from work for family reasons. And of course, everyone needs an occasional holiday and is entitled to one under the Basic Conditions of Employment Act (BCEA).

Here’s what South African labour law has to say about the leave to which your employees are entitled each year:

Sick leave

Employees are entitled to 30 days of paid sick leave in a three-year employment cycle. During the first six months of employment, an employee is allowed one day’s paid sick leave for every 27 days worked.

Explain to employees that they won’t be penalised for legitimate use of their sick leave. When an employee is genuinely ill, it is better for him or her not to come to work.

Time off will help the employee to recuperate faster and prevent him or her from spreading germs around the office.

That doesn’t mean that you should tolerate abuse of sick leave by employees who want to take a few bonus long weekends.

Remember that you have the right to insist on a medical certificate when an employee is absent for more than two consecutive days or on more than one occasion during an eight-week period.

If you have someone who is regularly on sick leave on a Monday or Friday, and who is unable to produce a medical certificate to prove illness, you may take disciplinary action against him or her.

Be sure that you closely follow the processes in South African labour law when you discipline an employee for abusing his or her sick leave entitlement.

Family responsibility leave

The law provides for at least three days per year of paid time off for certain family-related events, such as becoming a father, the illness of a child, or the death of a close family member.

You can offer employees a bigger allocation of family responsibility leave if you wish. You also have the right to insist on proof of the event, such as a medical or death certificate.

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Maternity leave

business-womanFemale employees are entitled to four months of unpaid maternity leave, though some employers offer longer maternity leave and choose to pay women for the time they take off to look after a newly born child.

In the event of a miscarriage or stillbirth, your employee will be entitled to at least six weeks’ maternity leave afterwards.

Help your employees to more easily access their maternity benefits from the UIF by submitting your monthly returns via uFiling. This will allow your employees to submit their claims online.

The law does not, as yet, prescribe a minimum requirement for paternity leave. You could accommodate new fathers by establishing a paternity leave company policy or just provide the bare minimum three days off (classified as Family Responsibility Leave).

Annual leave

An individual who is employed full time is entitled to at least three weeks of paid leave per year.

In addition to legal compliance and care for their people, smart employers encourage their people to take leave when they need it because it simply makes business sense.

Going on holiday is good for employees’ health, emotional stability and overall happiness, which in turn helps them to perform at their best at work.

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Though employees are entitled to leave each year, you have discretion about when you allow them to take it.

Many industries shut down over December; in this case, you may force employees to take the bulk of their leave during this time of the year. And, of course, you can turn down leave if someone requests leave during a busy period such as financial year-end.

Madelein Taljaard is an expert in areas of employee tax and legislative changes affecting payroll. Madelein joined Sage Pastel Payroll & HR in 2000. She is currently Group R&D Development Manager for Sage Australia, Asia, Middle East and Africa, as well as Senior Product Manager for Sage Pastel Payroll & HR. She is responsible for the development of Sage Pastel Payroll & HR software as well as Sage Pastel Accounting’s desktop products. In addition, she manages the integration of Sage Pastel desktop products in South Africa into other Sage initiatives like Sage Pay. Madelein has a BCom in financial management and has 16 years’ experience in personal income tax and employee tax.

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Labour Law

Alternatives To Traditional Legal Services – What Options Do Entrepreneurs Have?

In reality, small businesses that see legal compliance as a priority are often not in the position to hire attorneys.

Nicolene Schoeman-Louw

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Legal Services

Times are tough, especially for entrepreneurs. In order to succeed in the business world, you need “grit” as the Americans say. In addition, to you need access to markets and access to funding.

The problem with accessing sustainable markets, is that it often is a David versus Goliath situation. As a result, long and complex contracts or requirements are set. What is more, because most smaller businesses are more concerned about making sales or simply making ends meet, getting to the legal side of things – well that simply does not happen. This leads to businesses being non-complaint and thus viewed as a risk – as a result cannot access funding.

In reality, small businesses that see legal compliance as a priority are often not in the position to hire attorneys. As a result, their options are:

1. Purchase a template from a news agency

Although very cost effective, the problem with this is that templates are often outdated and the instructions on completion are unclear. If outdated and incorrectly compiled, businesses are, in my view, simply better off without.

Many businesses do not buy templates but actually download it from the internet. The problem with this is that the sources of these are often unclear – so in reality, you really don’t know what you are getting.

Related: SchoemanLaw Shakes Up The Legal Industry To The Benefits Of SMEs

2. Subscribe to legal insurance or legal consultancy

Subscriptions for in case you require legal representation are usually insurance policies. The problem herewith is that often some disputes are excluded, or some advisory needs are not included. Resulting in the business being left without access to these services, in some cases when they need it the most.

In terms of consultancies, these are businesses that are not law firms. In many instances, their service delivery and prices are much more competitive than law firms are. However, should a client be dissatisfied, they have limited recourse. All professionals belong to professional bodies that set and enforce standards. So, contracting with a consultant bears the risk of no specific quality standard guarantee and, in case of dissatisfaction, recourse lies in ombud structures or courts and often cost money.

3. A different way of thinking

It seems that small businesses are really left out in the dark. However, technology and developments in the legal industry may hold the answer. A select few consultancies, and now a law firm, have embarked on automating the documentary needs of small businesses and start-ups. SchoemanLaw Inc. in Cape Town is one of those firms.[1] In essence, this development is addressing a challenge faced by every other purported solution to date. Some benefits of this mind shift include:

  1. Users have access to up to date documents;
  2. It’s instantly accessible and the source is clear;
  3. Some systems include sophisticated help functions so as to ensure correct completion and implementation;
  4. The prices cannot complete with the traditional way of obtaining legal advice;
  5. Those supported by a law firm, are guaranteed the standards and quality associated with a law firm;
  6. Advisory support is often included or can be accessed additionally.

Related: Master The Ins And Outs Of South Africa’s Labour Laws

In addition, relying on more efficient ways of accessing these crucial services also standardises, manages and organises the legal and contractual needs of any businesses. Something that will serve them well whenever they wish to pitch to that large company for that contract that will really change things or access to funding when needing to expand.


[1] For more information: https://www.schoemanlaw.co.za/online-legal-services/

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Company Posts

Unlegislated ‘Other’ Leave Not A Right Says CRS Technologies

Employers are free to offer staff various types of leave, not covered by legislation, but recognised and governed by company policy and contracts – however, as HCM experts explain, this ‘other leave’ is not a right and ought to be seen as a privilege.

CRS HR And Payroll Solutions

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Employers are free to offer staff various types of leave, not covered by legislation, but recognised and governed by company policy and contracts – however, as HCM experts explain, this ‘other leave’ is not a right and ought to be seen as a privilege.

Nicol Myburgh, Head of HR Business Unit at HR and HCM solutions specialist CRS Technologies, distinguishes leave covered by the Basic Conditions of Employment Act (BCEA) – including annual leave, sick leave, family responsibility and maternity leave – from ‘other leave’ including study leave, paternity leave and cultural leave, for example.

For employers, there are a host of issues that need to be kept in mind when regulating ‘other leave’.

As Myburgh explains, leave that falls into this category is not governed by legislation and therefore is at the discretion of the employer in terms of how it is structured and applied.

Related: Poor Sick Leave Management Is Affecting The Health Of Businesses – CRS Technologies

Additionally, HR and HCM experts agree that these types of leave must be regulated by company policy, particularly the reasons why it is approved and when it is approved, all of which must be substantiated to prevent any feeling of discrimination or bias treatment among staff.  It is also possible that these forms of leave may be viewed as benefits, and that the refusal of an application may give rise to claims of unfair labour practises, and or breach of contract.

“Another important factor to consider is that some of these leave types – especially study leave – are offered by so many companies, that many employers have come to believe this is a statutory type of leave, and employers are obliged to provide it. This is not the case, study leave is not compulsory and even if an employer provides for it, they can make their own determination thereon,” says Myburgh.

CRS Technologies advocates that before additional leave types are approved, companies conduct an in-depth analysis to identify business risk with reference to operational requirement and the amount of staff members necessary to achieve operational goals.

“For instance if an employee takes leave that keeps him/her away from the office for a long period of time, like sabbatical leave, would the employer still be able to meet its operational requirements,” Myburgh adds.

It is also advisable to keep abreast of legislative changes that impact on leave management.

Although ‘other leave’ is not covered by legislation, Myburgh reminds the market that there may be some changes on the horizon.

On 25 November 2015, a draft bill was published in the government gazette which proposes to amend the BCEA, and the Unemployment Insurance Act, 2001.

Significant proposed changes include:

  • 10 consecutive days parental leave when a child is born or adopted.
  • The right to claim payment of parental benefits.
  • 10 consecutive weeks adoption leave if the child adopted is below the age of two.
  • If there are 2 adoptive parents, one of the parents may apply for parental leave and the other adoption leave.
  • The right to claim payment of adoption benefits.
  • 10 weeks of ‘commissioning parental leave’ for employees in a surrogate motherhood agreement.
  • If there are 2 commissioning parents, one of the parents may apply for parental leave and the other parent may apply for commissioning parental leave.

Related: Family Responsibility Leave – Know The Law Says CRS Technologies

Myburgh emphasises that employers familiarise themselves with the differences between BCEA and Bargaining Council or Sectoral Determination regulations, particularly where it applies to the governance of other leave.

This can only lead to improved operational efficiency and a more focused, productive and balanced work environment.

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Labour Law

Will Minimum Wage Increase Boost Economic Growth In South Africa?

The increase in minimum wage comes as good news since it raises the amount of disposable income for the domestic workers.

Jeff Broth

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The South African government announced on Monday that it is going to raise the minimum wage for domestic workers in the country starting from December 1st 2016. Labour Minister Mildred Oliphant said that the new wage increase will be applicable until November 30th 2017. The increase in minimum wage comes as good news since it raises the amount of disposable income for the domestic workers.

With the higher levels of disposable income, the domestic workers can decide to spend it all in improving their living standards or save the surplus income. However, for the financially prudent domestic workers, they will find ways to invest the surplus income through easy to use channels such as Stern Options and other trading platforms.

In his statement, the Labour Minister added that “The minimum wage adjustment is in line with the Basic Conditions of Employment Act which is regulated through the Sectoral Determination. Domestic workers are by law classified as vulnerable‚ hence the Sectoral Determination governing minimum wage and conditions of employment.” According to the labor laws in South Africa, domestic workers include nannies, gardeners, domestic drivers, housekeepers among others.

Related: Increase For Hospitality Wages

The minimum wage increase will however not be applied uniformly in all places. The government has divided different locations into Area A and Area B. Area A consists of major cities, towns and metropolitan municipalities. For domestic workers in Area A working for more than 27 hours per week, their hourly rate will be increased from R11.44 to R12.42. This will translate to weekly earnings of R559.09 from R514.82; and a monthly increase in wages from R2230.70 to R2422.54.

Domestic workers working for less than 27 hours a week in Area A, their hourly wage rate was raised to R14.54, which adds up to a weekly wage rate of R392.58 and cumulatively sums up to a monthly wage rate of R1 701.06. On average, the change in minimum wage for the metropolitan areas represents an increase of about 8.2% in the net pay for domestic workers from the previous year.

Area B consists of non-metropolitan areas in South Africa. For domestic workers in Area B working for more than 27 hours in a week, their new hourly rates stand at R11.31, which translates to a weekly rate of R508.93 and cumulatively add up to a monthly rate of R2205.17. Those domestic workers working less than 27 hours in Area B will start receiving a new hourly wage rate of R13.53, a weekly rate of R360.54 and cumulatively receive a monthly wage rate of R1 562.21. Compared to the financial year 2015/2016, on average this represents a 10% increase the wages for the domestic workers in Area B.

cyril-ramaphosa

These changes are the first among several others that are expected to be introduced in the coming months by the government of South Africa. Early on in August this year the Deputy President of South Africa Cyril Ramaphosa launched the process of reviewing the national minimum wage for South Africa by appointing a seven member panel to initiate the deliberations on the same. The debate about minimum national wage has been in the media for quite some time now going back to first quarter of 2016.

Related: How To Structure A Fair Salary That Will Motivate Your Sales Team

One school of thought believes that the minimum wage is not the solution to economic development in South Africa. In their argument, they believe that setting a minimum wage will increase the cost of production for goods and services and leave employers with two options.

The employers will either reduce their headcount in order to curb the rising costs or increase their product prices and face the danger of reduced demand and falling sales. Both alternatives are detrimental to economic growth.

Another school of thought argues that with increased minimum wages, spending power for the consumers will be increased and they will buy more goods and services that they could not afford before.

This would then push demand up and translate to higher production to meet the increasing demand and hence result to an increase in GDP. Eventually South Africa would experience higher economic growth rates as higher revenues for businesses result to further increase in wages by the employers which sparks another round of increased production and the cycle continues.

The debate is still raging on whether the increase in minimum wage is the solution to South Africa’s economic development and the final judgment is yet to be arrived at. However, with the panel constituted to deliberate the matter being made up of the best brains in the discipline of economics, we can expect prudent results to emerge from their discussions soon.

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