Effective 1 March 2025: New National Minimum Wage

February 2025 | Employment and Labour Law

The National Minimum Wage (NMW) for each “ordinary hour worked” has been increased from 1 March 2025 by 4.4% from R27,58 per hour to R28,79 per hour. 

Domestic workers: Assuming a work month of 22 days x 8 hours per day, R28,79 per hour equates to R230,32 per day or R5067,04 per month. Of course, this is just a bare legal minimum: the Living Wage calculator will help you check whether you are actually paying your domestic worker enough to cover a household’s “minimal need” (adjust the “Assumptions” in the calculator to ensure that the figures used are up-to-date).

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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Fired for not Working on the Sabbath

November 2024 | Employment and Labour Law

“One of the hallmarks of an enlightened egalitarian society is the right to freedom of religion.” (Extract from judgment below)

Our courts do not tolerate unfair discrimination in the workplace, and employers need to tread particularly carefully when it comes to the concept of “automatically unfair discrimination”. Get that one wrong and you could be penalised with an order to pay your employee two years of earnings as compensation.

What is “automatically unfair discrimination”?

A dismissal is automatically unfair if based on any “arbitrary ground”, including, but not limited to, a person’s race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth (aspects relevant to this case have been highlighted).

However, “a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job” (emphasis added).

Let’s discuss these concepts with reference to a recent Labour Appeal Court (LAC) case.

“Sorry, I can’t work on the Sabbath”

Employed as a regional marketing manager by an international hospitality company, an employee signed a standard employment contract which, after specifying “normal hours of work” as being 8.30 a.m. to 5 p.m., Mondays to Fridays, with an hour for lunch, also provided for circumstances in which he could be required to work outside those hours.

Two months after starting work, the employee dropped what presumably came as something of a bombshell to his bosses. He said that as a Seventh Day Adventist, his religious beliefs precluded him from travelling or attending events on the Sabbath (i.e. from sunset on Friday until sunset on Saturday). He hadn’t made any mention of this in his job interviews, nor had he challenged the wording of his contract as to the required work hours.

Initially his line manager was able to accommodate him by covering for him on the problem days (travelling, it seems, to Kenya, Mozambique and Zambia as well as locally), but after 16 months she could not continue. He was offered an alternative position which didn’t require him to work on the Sabbath, but that came with a 45% pay cut.

The manager declined this offer, and he was dismissed after a disability enquiry. He challenged his dismissal, and the Labour Court, after finding it to have been automatically unfair, ordered his reinstatement.

His employer appealed this judgment to the LAC, which overturned that ruling and held that the dismissal was in fact fair.

Lessons to learn, points to ponder

The reasoning and the legal principles that underpinned the employer’s success in this case provide a useful blueprint for both employers and employees who might find themselves in a similar situation. Let’s address them point by point:

• Job interviews: It no doubt counted against the employee that he hadn’t mentioned the limitations on his working hours in his interviews, nor had he queried the wording of his employment contract. As a job applicant, be clear about any constraints on your work availability outside of normal hours, and query anything in your contract that might conflict with them. As an employer, make it an integral part of your interview process to check that the applicant understands your requirements as to both normal and additional work hours, and agrees to them.
• Employment contracts: The employer’s success in the LAC would not have been quite as easily won if its contract hadn’t clearly stated that the manager “will be required to work longer hours from time to time without additional compensation” (emphasis added). A “job flexibility requirement clause” also helped it when it came to the offer of an alternative position.
• Automatically unfair discrimination: There are two questions here. Was there discrimination? And if so, was it based on an arbitrary ground such as the employee’s religious beliefs? The employer in this case conceded on both aspects.
• “An inherent requirement of the job”: It was then for the employer to convince the court that the discrimination was permissible because the job requirement in question is “inherent or inescapable in the performance of the job”. Such a requirement has to be “rationally connected to the performance of the job”, “adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose” and “reasonably necessary to the accomplishment of that purpose.” The employer had no problem in proving all that. But that wasn’t the end of it…
• Accommodating the employee: As an employer, you can’t simply say “tough luck, your religious beliefs mean you can’t do the job as per its inherent requirements so off you go.” You must prove “that it is impossible [for you] to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty.” It was on this leg that the employer nearly came unstuck – while two of the judges agreed that it had passed this test, the third judge disagreed. If the decision had gone against it, the employer would have been penalised with a compensatory order of 24 months’ earnings.

Bottom line here is that you must act reasonably and in context in trying to enable an employee to continue in employment.

Our employment laws are complex and the penalties for getting them wrong are severe – so don’t hesitate to ask us for help if you’re in any doubt.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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Employers: It’s November Again. Must You Pay 13th Cheques?

October 2024 | Employment and Labour Law

“The best investment you will ever make are your employees” (Peter Drucker)

As the end of the year approaches, many employees are eagerly awaiting their 13th cheque or year-end bonus. However, not every employer is in a position to pay bonuses, and this can lead to disappointment, disputes, or even legal action if expectations aren’t managed properly.

Read on to find out whether you’re legally required to pay a bonus, and how you can avoid potential conflict.

What does the law say?

There’s a common misconception that South African law obliges employers to pay annual bonuses. This is not true. There’s no automatic legal requirement to pay a 13th cheque or other bonus unless certain conditions apply:

• Employment contracts: If the employee’s contract states that an annual bonus or 13th cheque is part of their remuneration or guaranteed rather than discretionary, you are legally obliged to pay it.
• Company policies or agreements: Bonuses may also be provided for in company policies, collective agreements, or other documents. You need to follow these agreements unless circumstances make it impossible to do so.
• Custom and practice: If your business has consistently paid bonuses in the past, this may have created a “right of expectation.” In such cases, suddenly discontinuing the bonus without prior consultation may be viewed as unfair, and employees could take legal action for unfair labour practices.

How to avoid disputes: Prepare, plan and communicate

You can avoid the common disputes over bonuses by focusing on three essential actions: preparing, planning and communicating.

1. Prepare

• Review all employment contracts and company policies. Ensure these documents are up-to-date and clearly state whether bonuses are discretionary or dependent on conditions such as company performance or employee contributions.
• Be aware of any past practices. If bonuses have been paid regularly in the past, employees will almost certainly assume this will continue, even without it being part of their contract. They could also think that bonuses are an automatic right, and not based on performance. If you’ve paid bonuses in previous years, structure your policies carefully so that paying a bonus in good years doesn’t create enforceable rights (or even unrealistic expectations) in less profitable years. Specific legal advice on this point is crucial to avoid disputes.

2. Plan

• Use cash-flow planning to assess your ability to pay bonuses so you can make informed decisions about whether or not you can afford bonuses, and to give you early warning of any possible challenges.
• When you’ve made your decision, think about how and when to tell your staff about it.

3. Communicate

• Clear and early communication is key to managing employee expectations. If you won’t be paying bonuses this year, or will be reducing the amount, let your employees know well in advance to avoid last-minute disappointment.
• If you are able to pay bonuses, take the opportunity to reinforce the link between performance and reward. Thank everyone for their hard work and contributions to the success of the business.
• Remind staff about the taxman waiting in the wings for his cut. This could come as a nasty shock, particularly if the bonus pushes an employee into a higher tax bracket.
• Open communication and consultation build trust and help maintain morale and productivity, even if the news is disappointing. Employees will appreciate honesty and clarity, especially if you’re facing financial difficulties.

How we can help

If an employee believes they are contractually or customarily entitled to a bonus and you fail to pay it, they may cry “unfair labour practice” and take the matter to the CCMA (Commission for Conciliation, Mediation and Arbitration).

If you’re uncertain about your obligations or if you anticipate disputes, we’re here to help. We can review your employment contracts, assess past practices, and provide guidance on how to manage employee expectations legally and fairly.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Protect Your Employees from Harassment and Abuse – or Pay the Price

September 2024 | Employment and Labour Law

“It takes leadership to improve safety.” (Jackie Stewart, Formula 1 legend)

One of your key duties as an employer is to create a working environment in which your employees are protected from harassment and abuse. As a recent High Court judgment graphically illustrates, dropping the ball will cost you dearly.

Meet the protagonists

The cast of characters in this unhappy tale features:

The employer: A private hospital in Bloemfontein, operated by a national healthcare group.

The employee: A Surgical Theatre Manager employed to oversee and manage the hospital’s operating theatres, manage the theatre staff and monitor patient care in the theatres.

The surgeon: Who conducted a private practice at the hospital and performed surgeries in its surgical theatres.

11 years of staggering abuse

To summarise a long saga of woe, the employee endured eleven years of abuse from the surgeon, the highlights (or, more accurately “the lowlights”) being:

• Eleven years (!) of verbal abuse in which the surgeon’s aggressive personality and temper tantrums saw him “hurling profanities, insults, blasphemous language and obscenities at [the theatre manager] while in the presence of other operating theatre staff and even members of the public”.
• The Court summarised the surgeon’s behaviour as “disgusting” – unsurprising given the employee’s evidence that the surgeon had once gone to the extent of flinging a patient’s colon at her, together with a volley of swear words.
• Only her sense of duty, and her pity for the patients (many of them cancer patients in dire need of urgent surgery), caused her to endure the constant abuse, defamatory remarks and insults for so long.
• She submitted numerous complaints to the hospital over the years, both on her own behalf and on behalf of other theatre staff (including several scrub nurses who refused to work with this surgeon), without any appropriate response. Indeed, she testified that the hospital told her that she and the other staff “were not allowed to lay any complaints against a medical doctor”, who was constantly touted as a “money spinner” for the hospital.
• It’s important to note here that, although the surgeon wasn’t a hospital employee under its direct control, the hospital had the right to revoke his “admitting privileges” at the hospital for any reason including “abusive behaviour or harassment”.

The theatre manager sued the hospital for failing to come to her assistance and endured almost eight years of litigation. She eventually accepted an award of R300,000 as damages for the humiliation, degradation, shock, anguish, fear and anxiety she suffered. This included “severe psychological and psychiatric trauma manifesting as post-traumatic stress syndrome and major depressive disorder for which she requires psychotherapy treatment”.

The Court confirmed her damages award of R300,000, together with a large portion of her costs including a portion on the punitive attorney and client scale.

The hospital (eventually) paid up. But what about the surgeon?

If you’re an employee unfortunate enough to fall victim to this sort of abuse you may wonder if you can sue your tormentor directly in addition to suing your employer. The answer is an emphatic yes.

The theatre manager in this matter did sue the surgeon for damages. And while he died before the matter was finalised, she obtained a confidential settlement from his deceased estate.

The bottom line

All of your employees deserve to work in a civilised environment. This can be achieved by having common sense policies in place – and enforcing them uniformly, regardless of the seniority of the staff member, or their value to your business.

No doubt the negative media coverage that accompanied this trial has rubbed a lot of salt into the hospital’s monetary wounds. Their humiliating court defeat was very public, and the reputational damage they suffered surely exceeded the R300,000 they ended up paying the victim.

Actions speak louder than words

Good idea then to learn from the hospital’s mistakes. On the plus side, it had in place detailed policies to underpin its zero-tolerance approach to harassment, together with clear grievance procedures. What went wrong, it seems, was its failure to implement them.

Don’t make the same mistake!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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It’s Sick Leave Season – Can You Reject a Dodgy Doctor’s Sick Note?

July 2024 | Employment and Labour Law

“Many people including workers in South Africa do not have the wherewithal to determine between a qualified doctor, an unqualified doctor and one who is operating illegally. That is why there are regulatory and law enforcement bodies to whom suspicious practices by doctors should be reported.” (Extract from judgment below)

“Sick leave season” is still in full swing and many employers will be struggling with high levels of absenteeism. There’s no problem of course with genuinely ill staff staying at home to recover – no one wants them at work spreading their germs around or damaging their health! But what if you suspect malingering?

When can you demand a sick note?

According to the relevant provisions of the Basic Conditions of Employment Act:

1. You can require a medical certificate from any employee who’s absent from work for more than two consecutive days or more than twice in an eight-week period.
2. The medical certificate must state “that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.”
3. “The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.”

But what can you do if you suspect that a medical certificate has been bought or falsified?  Let’s have a look at a recent Labour Appeal Court decision which provides a timely warning to employers who reject certificates without good cause.

Dismissed for dodgy sick notes

• A store employee in Witbank was dismissed after being found guilty of misconduct by dishonestly producing two medical certificates in support of sick leave absences, thus breaching her employer’s policies, procedures, and honesty code.
• We’ll detail the employer’s reasons for suspicion in a moment, but the upshot was that the dismissal was found to have been substantively unfair, a finding confirmed by both the Labour Court and the Labour Appeal Court.

But why did they reach that conclusion?

Strong suspicions, but…

The certificates had been issued two years apart by a doctor of whom the employer was justifiably suspicious for a variety of reasons, including:

• An email warning the store to be cautious about medical certificates issued by this particular doctor.
• Apparently contradictory responses given by the employee when questioned about the notes, one of which had been issued by a nursing assistant and the other by the doctor.
• Investigations into the doctor and his practice. These included a visit to his consulting rooms by two managers, who concluded that the doctor might not be a real doctor and that he might be selling fake sick notes on the basis of their observations that:
  • The place did not look to them like a doctor’s surgery, with broken gym equipment, ragged curtains, torn posters and only a makeshift partition wall between a reception area and a consultation room featuring an untidy table cluttered with papers, plates, cups and an old computer monitor. They saw no files or filing cabinets, only copies of medical certificates and a stamp.
  • None of the usual questions were asked about “medical aid or cash patient” status, and “patients” would emerge from the consulting room in less than a minute holding medical certificates. It seemed clear to the managers that they had bought these medical certificates from the doctor’s assistants.
  • The doctor himself did not look to the managers like a doctor. He was not wearing a dustcoat and did not have a stethoscope. What’s more his appearance was unhygienic, with “long nails”.

One of the managers even testified that the doctor and his assistant had been arrested for illegally operating a surgery, dispensing medicine and issuing illegal sick notes. Strong grounds, one would think, for the employer to be extremely suspicious. But in the eyes of the law, they were not enough to justify the employer’s rejection of the medical certificates.

Why did the employer lose its case?

• It failed to prove its suspicions about the genuineness of the doctor or of the certificates. The doctor testified that he wasn’t just fully registered with the Health Professions Council of South Africa (HPCSA), he also had an impressive list of international qualifications and experience to his name.
• Critically, said the Court, “Ordinary people including workers surely cannot be expected to conduct an investigation into which doctor is qualified, which one is on suspension, and which one is for some or other reason not entitled to practise as a doctor. That is the function of the regulatory bodies.”
• The evidence that there may have been “certain untoward happenings in the running of the medical practice” was irrelevant, held the Court, to the key question of whether the medical certificates were irregularly sought and issued.

As an employer, please tread carefully with dodgy-looking medical certificates – you will need more than just strong suspicion to justify rejecting them. Contact us if you aren’t sure what you need to do.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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