Labour
Question:
Are employees earning above the threshold entitled to ask for time off in lieu of overtime remuneration?
Answer:
Overtime hours and remuneration for employees earning above the threshold are not regulated by law. These items are regulated by the employee’s contract.
Provided by Labour Law Management Consulting
Question:
Does leave still accumulate during maternity leave?
Answer:
During the course of maternity leave, there is still an employment relationship and the terms and conditions remain applicable. As such leave, will accumulate as normal.
Provided by Dynamic Labour Frontiers
Question:
We are medium-sized company in the manufacturing industry and employ over 1 100 staff.
Over the past few years because of internal labour/union pressures – such as maintaining Employment Equity - we have recruited apprentices. On many occasions, nepotism is the order of the day when it comes to selecting these individuals.
As per the act, an apprentice has to sign a four-year apprentice contract. These contracts are provided by the Merseta as we belong to this body. There are three parties to this agreement:
- Apprentice,
- Company, and
- Merseta.
Only once the contract has been completed, and the applicant has been lodged and indentured by the Merseta, is he is a registered apprentice. Apprentices are required to complete a monitored training schedule and after they complete the minimum criteria they can request to write a trade test. If they are deemed competent they are then classified as a qualified artisan.
However, there are a few problems which have arisen:
1. The individuals who were employed prior to becoming apprentices with letter of conditions of employment as per the MEIBC main agreement,
2. They apply for an apprenticeship and sign the above-mentioned Merseta contract, and
3. After completing the conditions of the contract by either passing and becoming an artisan, or failing to meet the criteria of the contract before the contract’s ‘expiry date’ on the fourth year, the contract is rescinded irrespective with no extension to the contract.
I am of the strong belief that once the apprentice has signed the Merseta contract and the contract is indentured, their original conditions of employment are no longer valid. Once the apprentice has honoured the Merseta contract - either by becoming an artisan or completing the calendar duration of the contract - it is now null and void. In other words, at this point in time they do not have a condition of employment and are effectively unemployed.
It seems to be the general expectation by the individual and labour – i.e. shop stewards – is that there is automatic employment here, either as an artisan or back in the workplace in their original positions.
As far as I am concerned, there are no conditions of employment here. Their apprentice contract superseded the original conditions of employment and they have completed the conditions of the apprentice contract.
Does it mean that because the company has a contract with student they are automatically employed or can the company select the best to work for them?
Answer:
The primary issue here is the apprentice contract signed by an individual who is in the employment of the company and not those who join the training programme from an unemployment position.
The Merseta contract is a legally binding contract and nullifies any previous contract in place. As such, upon completion of the four-year apprentice agreement the company has every right to make the decision about whether to employ the person or end the relationship. They have no obligation to take the person back and employ him/ her in their previous position.
It cannot be expected for a company to keep a position open for a four-year period for an individual. It is not practical to do so.
I must stress however that this scenario has not been tested in law and is therefore my opinion only.
Merseta, and in fact any other training/skills learning programme, are designed to uplift the community and provide skills to decrease unemployment:
- Companies expend many hours and financial commitments in doing so however it was never the intention of any training programme to guarantee employment within the company but rather to provide an opportunity for any person to gain skills for them to seek employment. Even though an individual may fail a course, the basic underlying skills are still provided enabling the individual to better him/herself for future employment.
In this case, your company is to be commended for investing so much in uplifting the community but cannot be expected to keep positions open for four years “just in case” the person wishes to work there after the programme is complete.
Provided by Dynamic Labour Frontiers
Question:
Will the company be held liable for an employee that drives to or leaves work drunk and kills somebody? If you are not saying that then the employee will most likely not be able to perform their required duties (office worker included) unless they can get safe transportation to and from work.
Answer:
The Company is NOT responsible for any employees actions to and from work (i.e. being under the influence of alcohol and thereby being involved in an accident of any nature), unless whilst driving a Company vehicle which is clearly marked as one. There is debate as to the liability while using a company vehicle to and from work however the Company may be drawn into a legal battle. It is not the Companies responsibility to provide safe passage to and from work for any employee thus arriving at work under the influence of alcohol will be dealt with by the Company in terms of his / her ability to work at the time.
Provided by Dynamic Labour Frontiers
Question:
I've got the problem of the company changing hands when I applied for disability. H.R. decided to go with the new fund and after 15 months declined because the disability happened before we joined. Now they are reverting back to the old fund and want to stop paying me an income now. Is this fair?
Answer:
Further clarity is required in this instance as to whether the fund is pension / provident or otherwise. Seemingly the Company made the decision to change over to a new fund and to revert back to the old one. Therefore the Company has a responsibility to ensure that any benefits / disability grants etc are honoured to the full.
Provided by Dynamic Labour Frontiers
Question:
What do you do when you know the rate per hour you are being paid is not market related and also that the employees working with you do not have certificates to proof any qualifications but I do, get paid more?
Answer:
Firstly salary does not have to be market related, it is something negotiated between employee and employer. Secondly with regards to a certificate or further education, these do not automatically warrant a higher salary as such may not be related to the position the individual holds. It bears mention that things such as length of service and experience may well play a role however if the qualifications warrant a higher salary a grievance must be submitted in order for the Company to deal with this appropriately.
Provided by Dynamic Labour Frontiers
Question:
We are a small company of five employees and we have just dismissed an employee for being over six times over the legal driving limit.. His duties were to drive agricultural machinery on our site; the health and safety of people on our site is my responsibility. I consider this to be gross misconduct and we did have a hearing where he chose not to have a representative present. We informed him of the DES idiom in writing. Could he have any case for unfair dismissal?
Answer:
An employee can never be stopped from lodging an alleged unfair dismissal however two aspects are pertinent to defending the matter:
1. Procedure and substantive reasons have to be proved at the CCMA or bargaining council.
2. It is also very important that codes or procedures and disciplinary steps are recorded and given to all employees. In other words your policy should state that a driver reporting for work under the influence of alcohol (as a first offence) will be dismissed. If it states that a final warning would be issued this could jeopardise your defence. Consistency is also vital.
It seems that you have covered both procedure and substance however the charges drafted for the disciplinary hearing as well as appointing an independent chairperson could
have an effect.
Provided by Dynamic Labour Frontiers
