Can Managers force Employees to work Overtime ? | Can Employees refuse to work Overtime?

In this video I answer the often asked question: Can Employers force Employees to work Overtime / Can Employees refuse to work overtime. I unpack some relevant sections of Section 10 of the Basic Conditions of Employment Act, and provide some practical examples what would would (in my opinion) constitute as reasonable refusals to work overtime.

Overtime Agreement: HERE

How to Calculate the Earnings Threshold: HERE

Overtime | What it is, how it works, who it is applicable to & payment of overtime

In this video I unpack Section 10 of the Basic Conditions of Employment Act: OVERTIME. The video starts with an explanation of who overtime is applicable to and who is not entitled to the overtime benefits stipulated in Section 10. Then I detail exactly what overtime is and the common misapplication of it. This is followed by a discussion, with an example of how overtime can be paid and the three different options. I continuously remind you that overtime is by agreement and I discuss all the different variations that can be agreed to, including the maximum number of overtime hour an employee can work in a week. The video ends with a final explanation of the lesser know clause that says that an overtime agreement lapses after 12 months (see video for specifics on this).

Overtime Agreement: Available HERE

How to calculate the Earnings Threshold: HERE

How Paid Sick Leave works

This video unpacks, with examples, common mistakes and practical considerations about paid sick leave as it is detailed in Section 22 & 23 (and a mention of Section 24) in the Basic Conditions of Employment Act. This video starts by explaining how sick leave works in the first 6 months of employment. Covering the common mistake of calculating sick leave per hour and not per day, and not implementing the sick leave cycle from the start of employment. I discuss in detail how the sick leave cycle works (and how it differs from other leave cycles). Then I move on to the full sick leave entitlement and how that is calculated. I provide some practical examples of how to calculate sick leave. I discuss the lesser known sick leave agreement (Section 22(6)) where Employers and Employees can agree to extend the sick leave entitlement, with a reduction in payment. Once sick leave is sufficiently covered I move on to Section 23 (Proof of incapacity) and here I provide a detailed explanation of what Employers and Employees need to know about medical certificates and what constitutes a valid and acceptable medical certificate. I briefly mention Section 24 (referring to COIDA) and then I end of the video with a practical discussion on dealing with fraudulent medical certificates (altered medical certificates and certificates from unregistered doctors).

Download the documents mentioned in the video: https://fourieemploymentrelations.com…​ Employment Relations Website: https://employmentrelations.co.za/​ HPCSA register (to check doctors registration): http://isystems.hpcsa.co.za/iregister/​ Allied Health Professions Council: https://ahpcsa.co.za/​

Constructive Dismissal & everything you need to know about Grievances

In this weeks Employment Relations video I cover constructive dismissal and everything you need to know about grievances. The video has timecodes for you to skip to the relevant part.

The video starts with the definition of constructive dismissal and where to find it in the legislation. Then I move on to discussing (in detail) the different factors that one would need to prove to be successful in claiming constructive dismissal. I included numerous real life examples of cases I have done to further explain the points. Of course if you are more experienced with this topic, you might want to skip those.

In the beginning of the video you will see an explanation of who has the burden of proof in constructive dismissals and why this differs from other types of dismissals. You might be wondering why you would care who has burden of proof – but this impacts which party (employer or employee) would need to prove that it was constructive dismissal.

I move on to unpacking what intolerability means and how this is measured. I discuss the subjective and objective test of intolerability, with an example or two to show how this theory is applied in practice.

Something we see often is that practitioners will say that a constructive dismissal claim will be unsuccessful is an employee did not lodge a grievance before the time. Therefore I answer the question – Must an employee always lodge a grievance before claiming constructive dismissal.

I also unpack exactly what a grievance is, what to do if a company does not have a grievance procedure and how to complete a grievance properly so that there is a higher likelihood of your concern / compliant being addressed and it also makes the claim of constructive dismissal more valid if you can show that you lodged a proper grievance and it was not dealt with. Of course that wouldn’t be complete without detailing a few of the common mistakes that people make when completing grievances to help you avoid them.

Finally I discuss the point of whether or not a case can be successful if there was some other alternative avenue that an employee could have taken to attempt to resolve the matter prior to resigning.

And to conclude – importantly for employees who want to claim UIF. I discuss the requirements for this when it comes to constructive dismissal.

I hope you find this video helpful! Remember to like & subscribe for me to continue to bring you useful content.

Buying, Selling or Transferring a Business as a Going Concern – You need to watch this video

In this week’s video we take you through the applicable labour law for transferring contracts of employment in the case of a business sale, purchase or transfer as a going concern – specifically Section 197 of the Labour Relations Act.

I have worked with many clients who sell, buy or transfer businesses and have seen the common misunderstandings and mistakes. In the video, I detail these so that you can easily avoid them.

I go through the clauses of Section 197, discuss dismissal, automatically unfair dismissal, organisational rights and other employment relations factors as they specific relate to a transfer of contracts of employment.

To access the transfer agreement click here

This video will be of value to anyone working with mergers and acquisitions, business owners buying or selling a business, business’ making structural changes, employees going through a transfer, employees in Human Resource Management, Industrial Relations, Labour Relations and Employment Relations consultants, and students of labour relations.

Please remember to Like & Subscribe and let us know if you found the video helpful.

You missed a CCMA case – What now? | Rescission Application

We know it can be scary realizing or finding out that you have missed a CCMA case. There is something you can do about it – A Rescission Application.

You might be feeling hesitant to contact a professional to help you with your missed CCMA case, because you are concerned about spending money. We’ve got you – Our video details exactly how to do a rescission application yourself using the free template available on the CCMA’s website. We take you through it step-by-step, explaining each line of the application and the affidavit that goes with it. A reminder that your rescission application must be done within 14 days of finding out you missed the CCMA case.

If you are reading this and you are already late to doing your rescission application – again, we’ve got you. The video also details how to complete the condonation application that needs to go with your rescission application.

To see more content like this – please remember to like & subscribe to our channel and let us know if you found the video helpful.

Absconsion

Absconsion – it occurs so often – yet the process to follow is still a challenge for many. This video explains exactly what absconsion is and how it differs from the very closely related extended unauthorised absenteeism.

After explaining how absconsion is not AWOL, I go into a step-by-step of what to when an you suspect that an employee is absconding.

The video is packed with information, including UIF considerations for absconding employees.

To access the documents referred to in the video click here.

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Employment Relations has a Youtube Channel!

Instead of doing weekly written blogs, we have weekly videos that you can watch or listen to.

Every week we address a new employment relations / labour relations / industrial relations / labour legislation / conflict / leadership topic to discuss. If you would like a specific topic – comment on any of the videos with your questions or your topic requests.

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Contracts of Employment

Understanding the Basics

Technically the Basic Conditions of Employment Act (BCEA) does not say you must have contracts of employment. That being said, the BCEA does say that an employer must provide specific information in writing (see Section 29), this however, is not applicable to all employers.

When?

One of the most frequently heard statements about contracts of employments is: They don’t have contracts because they are casual workers. This statement is unfortunately incorrect. The only time an employee does not have to receive information in writing (as per Section 29), is when the employee works less than 24 hours in a month. As soon as an employee works more than 24 hours in a month, they become entitled to most of the provisions of the BCEA and they need to be registered for UIF contributions.

What happens when there is no contract of employment?

Here are a few things that can happen:

  1. If an employer has not provided an employee with any information in writing, the Department of Labour can compel an employer to do so (compliance order). Except if the employee works less than 24 hours in a month.
  2. The provisions of the Basic Conditions of Employment Act and all other relevant legislation automatically become part of the terms and conditions of employment (referred to as implied terms). This will happen irrespective of whether you have a written contract of employment, but the difference with a contract is you can apply the legislation appropriately to suit your business context.
  3. When there is a dispute about an agreement between the employer and the employee, the outcome can be negative for either party, or both. This is because the agreement will be determined based on the behaviours of the parties (referred to as tacit terms), which when assessed by a third party, may not accurately reflect the agreement.
  4. Ambiguity. If the parties lack clarity, it could cause differing expectations which may result in unnecessary conflict between the parties.
  5. There are specific provisions in the BCEA that require a written agreement between the parties. Without this agreement, the specific terms and conditions cannot be enforced and could be costly. E.g. Reducing an employee’s lunch time to 30 mins or not having lunch on days when an employee works less than 6 hours (see Section 14).
  6. A fixed-term contract of employment must be in writing. This means that should the employer terminate the relationship with the employee, without a written fixed term contract that specifies the termination date and the reason for the fixed term contract (see LRA Section 198B for justifiable reasons for a fixed term contract), it will constitute as an unfair dismissal. This is not applicable to employees earning in excess of the earnings threshold (currently R205 433.30 per year CTC).

Common Pitfalls around Contracts of Employment:

  1. Using generic templates: A contract of employment should always be tailored for your business. With generic templates you might bind yourself to terms and conditions that you were unaware of that do not further your business interests. Moreover, your integrity may be questioned if the actual procedures and policies of the organisation are not accurately reflected in the contracts.
  2. Rushed contracts: Too often employers are faced with a situation where they want to enforce a term or condition of the contract only to discover the contract was drafted with common errors related to rushed work. E.g. “as per clause 17” where the contract does not have a clause 17.  
  3. Not having sufficient information about the implementation of clauses: Here are some examples of this: Contracts include a termination clause that says you can terminate the employment relationship by giving notice (a specified period of time). However, this can only occur for a fair reason and after a fair procedure has been followed (see LRA for guidelines on the procedures). Moreover, contracts often create the misperception that you can simply not appoint an individual after a probation period. Both of the scenarios will constitute as unfair dismissals if implemented without following the correct procedures and without a fair reason for termination.
  4. Clauses that are contradictory to the legislation: Two parties can never agree to something that is contrary to the legislation and any clause to that effect will be void. The most frequently seen example is a notice period of 24 hours. This is not compliant with the BCEA (see Section 37).
  5. Overly complex fancy legal wording: The contract of employment is used to specify the terms and conditions of the relationship. It assists both parties to know what is expected of them. If a contract is overly complex and not understood by one or both parties, the contract will lose its meaning.

For company specific contracts of employment or to review your current contracts of employment contact us admin@employmentrelations.co.za