I have been working shifts for the past 7 years, and I have been receiving my shift allowance. The company I’m working for now informed me that I would be working normal hours (operational requirement), which will mean that I will forfeit my allowance. My argument is that i have been receiving this allowance for so many years. When the company takes it away, then I would take a painful knock on salary. I have adjusted my lifestyle according to what I have been earning. I have suggested to the company with no success that: 1. Adjust my GTCE with at least 50% of my annual shift allowance. OR 2. Allow me to continue working shifts for at least 8 months. This will give me time to adjust my lifestyle to my new monthly salary. Do I have a case?

Answer:

No they have the right to change shifts and the allowance would only be applicable to the shifts. Thus if you are moved to normal hours you forfeit the allowance.

I would like to find out about my husband’s rights. He works for a smallish company is Cape Town, which has branches in Johannesburg and Port Elizabeth. He has been there for a year and 3 months now. At the moment, his pay is R4500 a month. Recently, he found out a co-worker who started after him, makes R5500 a month (they have exactly the same position). He spoke to his field manager about this, who was surprised that he still made so little, as she though his pay was more.

She said she will speak to the Partners of the company. All staff enquiries have to go through her and staff are not allowed to speak to them directly. This was almost a month ago. When questioned, the Field manager said she hasn’t spoken to the partners yet as they were “in a bad mood and I have to wait till they are in a better mood”. So now we have to sit and wait until this field manager builds up enough courage to speak to them? My husband and rest of the staff work overtime quite often. In the last few days alone he has easily worked 12hours overtime.

When he started, they told him that they don’t pay out overtime, but he will get it in leave days. When he decides to take leave, they keep cancelling it at the last minute or tell him they are too busy (they seem to be “too busy” year round). They then said that they will now pay out the overtime. The first month came and nothing. The partners then told them that overtime will now only be paid out every second month. This months is now our 3rd month we are awaiting his overtime payment. He took leave from the 21st until today. On Wednesday he got a call from the Field Manager, telling him he needs to go to Johannesburg to help out and promptly cancelled his leave remaining.

So now he doesn’t get paid his overtime, nor does he get his leave promised. They change the overtime pay/leave agreement so often, that the employees sometimes don’t even know what they are supposed to receive and are too afraid to query this if they receive nothing at the end of the month.

My husband also travels to Johannesburg and PE a lot to help out. He has now been told that the time he spends on the road driving from Cape Town to JHB/PE is not considered overtime, so they don’t count that time on the overtime, is this legal? Also, the company has a slogan that they will respond to call out’s within 60 min. They pressure the employees to keep to this, so if the flood is 1 and a half hours away, they are pressure to speed to get there within the hour. Obviously they then get speeding fine, which they have to pay for themselves (the employees).

Lastly, my husband also had an accident in November (a truck in front of him slid on the wet road around a sharp turn and when my husband tried to brake, he also slid and drove into the truck. An investigation concluded that is wasn’t his fault. The company’s insurance paid out in full and they go a new van. Now, 2 months later, they are threatening to take away all the overtime pay accumulated, as well as his bonus (which he is supposed to get in April) to “pay” for the van. I feel this is just another excuse to save themselves money and not pay all the overtime owing and feel this is unfair as it was not his fault and the insurance already paid out in full. He also workes all these long hours to make a little extra money and he just never sees it. My husband is very scared to actually just go and confront them about this as he is scared of being fired (this has happened to other employees before).

Answer:

These practices are unfair and your husband will only be able to address these issues by laying formal cases at the Dept of Labour for all the monetary issues and at the CCMA for the remaining issues. If he does not do so there will be no change.

My boss only paid me half of my salary this month and said that she is not going to pay my other half as she thinks I am going to resign. She verbally agreed to pay my salary on the last day of the month and this late payment has happened before. My contract she said I’m not allowed to change it, i need to know what my office hours is that she agreed on as from 08h30 to 16h30 and after 3 months I’m allowed additional benefits like medical aid etc. Which still has not happened. She also deducted more then half of my colleges salary cause she say her cellphone bill was to much. She didn’t show her the account or informed her in that should this happen again i will deduct it from her salary. I want to know what is my right.

Answer:

No deductions can be made without an employees signed consent. If they are then they are illegal by law. Raise a complaint with the Dept of Labour for unpaid salary and unfair deductions. You can also raise a case at CCMA for failure to abide by employment terms in that you have not been afforded what was promised.

My father in law has been working in construction for a good number of years for the same guy though they’ve never made out a written contract. His employer has also never registered him for UIF. His employer has now not paid him since November and we would like to know what actions could my father in law do to ensure he gets his outstanding salaries without losing his job?

Answer:

I would raise an official complaint to the Dept of Labour for unpaid salaries and a case with the CCMA for unfair labour practice for failing to comply with legal provisions for employment contracts. However the employer will not be happy with this so I suggest that he approach the employer first and tell him that he has had specialist advice and wants his monies within 5 days failing which he has no choice but to file the cases.

I just came back to work after 3 ½ months unpaid Maternity leave, during this time there were 3 public holidays & 4 days that the company gives everyone as a gift, which every one got paid for except for me. Can I ask for them to pay me those days what is my right?

Answer:

Unfortunately not. Maternity leave is compensated via claims to the department of labour and the company is not obliged to cover you during this period. Nothing compels them to pay you for these days.

Please will you advise me? I work for a power station. Are they allowed to install cameras on the floor and use it against you in a hearing? They did not tell us at all. What do I do in this case?

Answer:

The company has every right to use security cameras on their premises and may use footage if you have committed a misconduct. If you have done nothing wrong then you have nothing to worry about. Obviously you have and must now accept the consequences. This footage is evidence. You must receive all allegations against you with details in your notice of enquiry. You have every right to demand this.

I have handed in my resignation as an IT Manager at an event Company, my employer has accepted my resignation and informed me via email that I need to take note of point 3.19 in my employment contract. The clause is a restraint of trade which restricts me from working with/for any company or business similar which is competition to my current company for a period of 1 year. How should I respond to the email? There has been no mention of compensation for the period of restraint nor any debate about actually enforcing it. Your response would be greatly appreciated.

Answer:

Laws on restraints are in favour of the employee. As long as you do not deliberately poach clients and/or divulge confidential info of the previous company they will not be successful in enforcing it.

The law prohibits anything that restricts a persons right to employment. I would reply that you are aware of the clause however that you will not be approaching existing clients and will not under any circumstances divulge confidential info. With this in mind they are free to pursue any avenue they see fit.

Restraints can only be addressed via civil court and the applications will be costly and protracted for them with the law on your side. Keep a copy of the email that you send.

Last year September my previous employers offered voluntary retrenchment packages. In December of last year I opted to take the package. I was then offered a job with the opposition and have now taken up a position in their company. My previous employers are now threatening to take me to court and sue me for the package the paid me. Can they do that? What can I do to protect myself?

Answer:

No if you are retrenched they cannot force any restraints. The law is with you. They are farting in the wind so tell them to do what they want.

A friend of mine has employed an American passport holder here in RSA on a holiday visa, who is married to a RSA citizen. The women in question is not registered for tax, is working illegally, taking a job away from a South Africa. My friend thinks that as the employer she has not done anything wrong. Has she? What are the implications if both employee and employer are caught? What advice can i give my friend?

Answer:

Any foreign employee must be in the possession of a valid work permit and/or temporary residence permit. A mere holiday visa is not accepted. If an investigation is done by the department of labour and she cannot produce such she could be in line for adverse fines and similar problems. The employee may be deported for breaching the conditions and prescriptions of the holiday visa. As an employer one must think with the head and not the heart.

I have a part time maid who currently works 2 days a week. She has been with me 8/9 years. Recently her attitude and demeanour has changed. She sulks. I wish to get rid of her. Can I or do I have to pay her out a retrenchment deal. I have no contract with her.

Answer:

My suggestion is to say to her you are retrenching her as you can no longer afford a maid. You will have to pay her 1 weeks wage per year served. ( so 2 days salary x 8/9) & one months notice. Giver her a letter stating that you are retrenching her due to financial reasons.

I took over a business in 2006, one employee, “Kate”, was paid R3000 by the previous employer, but when I took over we had a verbal agreement that I could not afford her on that salary so we agreed on R2500. Business has been slow and I can’t give a salary increase. Now she wants to take me to the CCMA, because I cut her salary. What will happen now?

Answer:

If she has been on R2500 since 06 then she cannot only now claim her salary was unfairly cut. A few other issues that I would have is that the CCMA has no jurisdiction on salary issues so I would ask that the case be dismissed. Further applicants only have 90 days to lodge a claim after the “unfair” practice so if her salary was cut 4 years ago she would be way over her claim period.

I want to take study leave for a month. I have been employed for three years now. What are my labour law rights?

Answer:

You are only entitled to four days study leave after completing twelve months service. You would have to ask the company permission to use annual leave for the balance.

I saw an e-mail in the receptions outbox in which it stated that the person conducting that service (me) no longer works for the company. I haven’t received notice of dismissal, or given notice. What are my rights regarding this matter?

Answer:

As nothing has happened I suggest you speak with a senior manager and raise the issue. Get the required clarity first before embarking on any actions.

Information is power.

I went on unpaid maternity leave from 01/05/2009 – 30/09/2009. The company I work for gave increases on 01/07/2009. everyone got an increase (I am the payroll administrator so i know) but I did not get one. I am back at work now for 4 months and still did not get anything. I have spoken to my employer and was told it would get sorted out but nothing has happened. I have been with the company for 4 years and have only received 1 increase in May 2008. i do excel at my job. What are my rights?

Answer:

Unfortunately all increases are discretionary and are a management prerogative unless stipulated by a Gov. Sectoral determination or bargaining council agreement applying to all employees in that industry. No law can force a company to give you an increase. If it stated a set increase in your employment contract,  which I seriously doubt, then they would be obligated to do such. As you have asked and they have refused there is not much you can do.

If an employee works more than 10hours of overtime per week, what are the implications? If i work from 8:00am to 5:00pm, when I should work from 8 – 4:30 pm do I get compensated for the half hour worked?

Answer:

Law prescribes a maximum of 10 hrs overtime per week. You may work over this by mutual agreement. All overtime must be paid out at prescribed rates.