Question:
How long should I be working for a company to qualify for maternity leave. I am starting in a new company on the 1st of February and I suspect that I am 1 month pregnant. By the time I deliver my baby I would have worked for 8 months.

Answer:

There is no set period for qualifying for maternity benefits. You will follow normal prescribed procedures of leaving 1 month before delivery date and are allowed a further 3 months after the birth. You can ,by agreement,return to work earlier than that. Remember that compensation during this period is via maternity claims and not from company.

Question:

An employee has taken unapproved leave for 10 working days during December of 2009, after signing a contract in 2004 stating that no employee would be granted leave during the November to January period of any year as it is our busy season. The employee in question has requested leave for this period in October 2009, as well as November 2009, but the leave was denied. He then still took the leave without approval. What action am I allowed to take also taking into consideration that the employee in question has been with the company for 12 years and had in excess of the 10days owed to him for his annual leave cycle?

Answer:

I would charge him with AWOL (Absence without official leave) & failing to comply with a direct managerial instruction. You could also go with breach of contract. The sanction may be as harsh as your codes allow and linked to consistency for similar offences. It depends what you want to do with the person I.e. Retain or dismiss. Remember you can issue up to a final written warning without a hearing.

Question:

I have been dismissed from employed on in May 2009 and went through CCMA and my arbitration was completed in December. The reward is that substantive unfairness and retrospective reinstatement dating back to May. However the commissioner also stated that I am not entitled to any back pay. Is this not a contradiction and how do I challenge this award?

Answer:

The commissioner may make any appropriate decision they see fit. The only way to challenge the award is via a labour court application to review the award. This will be costly and prolonged. Until I see the contents of the award I cannot make any calls as to the merits.

Question:

have been working for a company for almost 3 years and have a signed contract stating working hours, pay etc. They(management/owner) want to increase our working hours and add an amendment to our contracts stating this. My question is this: by law can they force me to agree with this without increasing my wages? It’s a 38% increase in hours so surely I can demand a 38% increase in wages or refuse the new terms and they can’t dismiss me because I signed a contract agreeing to the ‘old’ working hours? What does the law say? If you could include reference to which labour act so I can look it up I’d appreciate it.

Answer:

No company may unilaterally change the terms and conditions of employment. There has to be consultation with staff and you need to provide signed and accepted agreement to any changes.

No person can force you to accept or “fire” you if you do not. I suggest chatting to your manager of your concerns and advise him/her that you will require compensation in accordance with increased hours. Equally you may only work the prescribed hours by law and again no one can force you to work outside these prescriptions.

Question:

my company changed our pay structure 6months ago and have been saying they will be giving us new contracts all this time, but every time they make a deadline for us getting these contracts they change it, but this is not why I am writing to you, I am writing to you because my managers have warned us that we might not want the new contracts and was wondering were I stand if I do not agree with something on the new contract, can they fire me?

Answer:

A company cannot make any changes without consultation and mutual consent from the employee. Equally they cannot unreasonably force you to accept the new contracts. If they tried to fire you they will be doing so in order to enforce unilateral changes to terms and conditions which means you would have a strong claim against them at the CCMA. Remember once you sign and accept the new terms they win and you have no choice.

Second Question:

Thank you so much for this site! It is so very helpful! and thank you for taking the time to answer all the mails you receive!

I have a a problem! My boyfriend is having some problems at work, he is a Landscape architect and has been working for a very large company for 6months now. The first few months was great, he worked directly under the MD and they ran a garden TV show together, as of last month the show is now finished and commence next year sometime again. In the meantime they have moved him to sales, which is great as they keep telling him about how much commission he can earn, but they seem to have lumbered him on a site to fix other peoples problems, he works till 7/8 at night and starts at 7 in the morning, he sometimes works through the night just to get the job done as he works with very strict deadlines, about a month ago he was put on a project known as Mushroom park, this was a huge mess and Chad was the only one in the office with actually site experience and therefore he was took the job on the bases that at the end of it he would be given 15K as a reward.

He has worked every weekend non stop since he took this on, and asks for nothing in return, he has also now resigned to the fact that they are not going to give him the 15K because the client relations manager keeps telling him he is will not receive it (she has a grudge against him as the MD now thinks he is wonderful and not her).

This company expects him to work non stop overtime and does not pay anything for this nor do they give him time off! they promise him time off and then the day before tell him he cannot get it anymore! I feel his is being unfairly treated and I feel he is being victimized by the Clients relations manager. I told him to talk to his MD but he is convinced the MD will take her side and make his working environment even more stressful! I don’t know what to do anymore, he does not sleep, he does not eat, he takes everything as personal reflection on himself, even when they do not provide him the equipment/staff and vehicles he need to get these projects done. and during this is still expected to do all the designs and do sales and meet targets.

Please any advise would be appreciated! I feel his company is abusing and taking advantage of his good nature, is it legal to put people under so much pressure? I am sure he is going to have a stoke or heart attack at the age of 25 and I don’t know what to do, please help!

Second Answer:

Unfortunately I have been tied up on a longer matter in Cape Town for the last 2 months and have only recently returned. In saying this I will respond and hopefully my advice is still valid within time frames.

Firstly no questions are stupid if asked in an uninformed manner. Labour law is quite simple in that it prescribes working hours. No person can be expected or forced to work more than that. Currently he should not be working more than 45 hrs per week with a maximum overtime of 10 hrs per week. Equally the 10 hrs are to be paid at prescribed overtime rates. He can choose to work more overtime but they will have to pay for such.

Again the company has to provide all essential tools and equipment necessary to get the job done. I suggest he talks with the MD and tells him that he has chatted with a labour specialist who he met at a friends braai and is concerned as he is now aware of prescribed working hours and overtime rates. Further that he believes that his current hrs and conditions are excessive and that he will in future work only the hours required. He is to ask that his overtime is paid accordingly. They cannot do anything legally against him for this.

If he does not ask or raise the issue it will never be resolved and he will end up burning out mentally and physically. If they are aware he has an informed “friend” in labour law they will think twice before doing anything rash.

Question:

I was with a company that had a contract with Vodacom. The company lost the contract (end September) and had to retrench approx. 150 employees due to the Lost contract (approx. 85% of total headcount).  I was employed in the “back office” for this account, which also went through a process of retrenchment, but the company decided that my position would remain and i was therefore not affected by the retrenchment process.

As the company operates in the field marketing area, there was a standard restraint in place which I signed as part of the entry documentation.

I approached the new company that won the contract and was offered a position. I subsequently resigned (negotiated a 2 week notice period, mutually agreed to), but obviously did not inform them of the new company (I gave them another companies name).

Old company has since found out where I am and have sent me a lawyer’s letter stating that I must resign.

What would you advise, as I have no intention of resigning and feel that under the circumstances (previous company had no clients bringing in revenue and I was concerned that i may be retrenched after a few more unsuccessful months of trying to get new clients).

Answer:

Restraints are extremely difficult to enforce and the law is in the employees favour. They will have to file civilly and it will be very costly for them. As long as you do not give out confidential info of your last company to the new one -don’t stress. I would reply that you will not resign and have left for reasons of stability and ensured continued employment after a large scale retrenchment process at the previous company.

Question:

I have a Hair Salon. My senior hairdresser is pregnant & her due date is in about 6 weeks. She wants to work till 2 weeks before her due date, but I feel she is unable to fulfill her duties as hairdressing can be physical. She says that she can’t afford to go on maternity leave earlier, but I feel I can’t afford to let her work longer than that, as it happened that we had to cancel a whole days appointments recently because of possible complications after a very busy day. Can I force her to go on maternity leave or not?

Answer:

Yup, the law is strict on pregnancy. She needs to go off 1 month prior to expected date and return 3 months after delivery. Give her a letter informing her that she will embark on leave on (date being 1 month before due date) and must contact you after the birth so that you can arrange a return date. She may return to work earlier than the 3 months on agreement with you and if she is fine to do so.

Question:

At the beginning of October 2009 I received a retrenchment letter stating that I have been retrenched due to my position has become redundant, this is after 3 months of consultation with the Union and the CCMA, I have until end of October, thereby my employment will be terminated. Fact: my position has not become redundant as I am training someone else, whose position has actually become redundant and who is going to replace me when I finish off. Is this legal and if not, what legal action can I take thereof.

Answer:

By rights if you are retrenched your position cannot be replaced and if it becomes vacant you should be given first option to reapply. Your recourse because it is retrenchment is via Labour Court. You would have to file the matter through the courts and will have to prove you were replaced immediately.

Question:

My wife worked for Coca Cola Fortune in Polokwane and was medically aborted since March 2008 by her doctor. The problem is that since then she never received any salary from her employer and they are dragging their feet to finalize the claim. I am spending lot of money on her medication without any help from her employer. They also do not want to fill forms from department of labour. What process can we follow to speed the claim?

Answer:

You will need to contact the Dept of Labour and lay a complaint that the company is not assisting in her claim. They will also enforce payment of salary. As to speed up the claims remember its done by the State which works on African time so do not expect anything fast. I have dealt with matters with them that have taken 5 years to finalize.

Question:

Could you please advise me on what to do. I’ve been contracting for a State owned enterprise for 10 months at a salary of R20800.00. They are busy with a business case to make me permanent as there is no-one else to do the work however the manager told me that I need to take a cut in salary for the permanent position as my currently salary is far higher than the salary for the job grade. Is this legal? Why do I need to take a lesser salary to become permanent doing the same work I’ve been doing for 10 months at a higher salary. Please refer me to the labour Act as possible where it states the i/legality of this issue.

Answer:

As it is a parasitical they are also forced to comply with job grades. Contractors may be paid whatever they decide upon but permanent employees will receive salary as per graded determination. Unfortunately you do not have much of a case and will need to make a decision. They can reduce as per grade on a permanent offer. Remember if you don’t accept they will merely not renew your contract. You are wanting to take on the Government on set issues that you will not win.

Question:

What are the safety rules and regulations for hairstylists? Is there a W.H.M.I.S.code or any health standards for hairstylists? How are stylists insured for health, life and personal insurance policies?

Answer:

All occupations are protected by the Occupational Health & Safety Act and basically any condition or situation which is potentially unsafe or may be a hazard is outlawed. I suggest you obtain a copy of the Act as to peruse details that you are concerned about. It would also depend on where you are situated. My base is South Africa and all laws very so I would need to know the arena we are working in.

Question:

My company changed our pay structure 6months ago and have been saying they will be giving us new contracts all this time, but every time they make a deadline for us getting these contracts they change it, but this is not why I am writing to you, I am writing to you because my managers have warned us that we might not want the new contracts and was wondering were I stand if I do not agree with something on the new contract, can they fire me?

Answer:

A company cannot make any changes without consultation and mutual consent from the employee. Equally they cannot unreasonably force you to accept the new contracts. If they tried to fire you they will be doing so in order to enforce unilateral changes to terms and conditions which means you would have a strong claim against them at the CCMA. Remember once you sign and accept the new terms they win and you have no choice.

Question:

My company has agreed in writing to pay the full retrenchment package including 4 weeks notice at full salary. They are now stalling on paying the salary claiming they don’t have to by law. Is this true?

Answer:

If they have agreed in writing then they are legally bound to do so. This agreement will super-cede general legislation. Contact the Dept of Labour and lay a formal complaint with regards to non payment of monies. They will enforce compliance.

Question:

I have been permanently employed at this company for almost 4 years, of which 2 years (after restructuring) has been by a new company (i.e. just different name, same place and people) and with a new contract. Still permanent employee. I am appointed as Communications Manager and Executive Personal Assistant and my contract clearly lists both jobs (with their responsibilities). A 13th cheque as part of my yearly income/salary, 25 days’ annual leave and salary of R16000 (TCTC).

Just over a month ago, out of the blue, the CEO called me and my 2 colleagues (Client Relations Manager and Admin Manager) in to the boardroom and told us that they can either retrench us or reduce our pay, therefor they (the CEO & Directors) decided to reduce our pay. It was later established that the reduction for all of us is 35 %. How they came to that amount is however unclear. We did not sign new contracts or anything else and also the CEO said that all 13th cheques (paid on our birthdays) will stop with immediate effect, BUT I was the only employee that had not this year received my 13th cheque all my male colleagues had already received theirs! And, remember, it’s a ‘given’ i.t.o. the contract. Now the CEO also said that we must increase sales & income of the company or more salary cuts and/or retrenchments will take place.

However, none of us were appointed as sales personnel or estate agents. My two male colleagues (on the same ‘level’ as me, with no more training/qualifications than me) also earn substantially more than me, even the one appointed after me. They are also scared of taking on the employer as they both have families and bonds to pay. After the salary cut they now earn what I earned before the reduction in salary. The company is in a dire financial situation and we have to lie to clients over the phone and say all is well with their investments, however it would not seem that way at all. The CEO & directors already pocketed a lot of money for themselves, in stead of helping the company. This is not the best time to find alternative employment, so what should I do? I am scared that by doing nothing the employer might think that I am agreeing to the new terms (although not in writing!).

Answer:

Any changes to terms and conditions to contracts must be done after consultation and with mutual signed consent with the employee. Thus as this has not been done the changes are not valid. I cannot make your decisions and you are a big girl now but if they are financial difficulty I doubt it will get better. Thus your situation may get worse. Maybe get your CV out in the interim on the quiet and leave if you find anything stable. You can enforce your salary and terms via CCMA but once you do this they wont be happy bunnies and will get rid of you anyway.

Question:

Can you tell what is the position of the Labour court regarding a illegal foreigner, only after committing theft it was discovered that he was indeed illegal and that he obtained a Temporary ID by committing fraud with the ID number, he was employed believing that he was a South African citizen – will he also be seen as an lawful employee?

Answer:

If he obtained his status via fraudulent means this is illegal and alone is enough to terminate his employment. He would have a very weak LC case if this is the circumstances. Lawfully he would not be an employee due to the methods he obtained such.