Cape Labour Blog
Labour Consulting Services
PROTECTION FROM HARASSMENT ACT
023 days
On 5 December 2011, the Protection from Harassment Act (the PHA) was published in the Government Gazette. The Act came into operation on 27 April 2013. In terms of this Act, victims of harassment may apply to the Magistrate’s Court (the Court) to have a protection order issued. Such an order may be handed down against any person who engages in prohibited activities such as stalking, persistent electronic messaging, sexual harassment and any other behaviour calculated to cause psychological and/or other kinds of harm to the victim. A protection order is intended to interdict and restrain the perpetrator from engaging in the unwelcome conduct.
Harassment in the workplace is not excluded from the PHA. A harassed employee may seek to have a protection order issued against a colleague or manager. This may have a significant impact on workplace relations and the employee relations climate in the workplace.
The enactment of the PHA again stresses the importance of having internal communication channels in the workplace. Staff should be encouraged to utilise complaint or grievance procedures. Resorting to serious interventions such as obtaining a protection order against a colleague could have disastrous consequences for workplace harmony. However, this Act needs to be utilised by those persons who feel the need to make use thereof.
This Act enables all citizens to apply for a protection order at their local Magistrate’s Court without any legal representative.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
CIRCUMSTANTIAL EVIDENCE
66 days
During a disciplinary hearing procedure; employees are either guilty or not guilty per the lesser burden of proof known as proof on the balance of probabilities. Typically, direct evidence (eg eye witness accounts) are utilised to prove guilty in a disciplinary hearing.
However, on occasion, in the absence of such direct evidence, so-called circumstantial evidence may be sufficient to prove guilt. It is apparent therefore that direct witnesses are not always necessary when seeking to prove guilt in a disciplinary hearing.
Circumstantial evidence may, alone be quite sufficient to prove that an employee is guilty of an act of misconduct. It follows though that so-called plausible inferences may only be drawn from other facts which have been established and that there is good reason, on the balance of probabilities, to select one inference over another. A chain of events must be shown to lead to a plausible inference that the employee is guilty.
For further information on any labour related matters, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
Free Domestic Worker Seminar
86 days
You are cordially invited to attend a free domestic worker seminar on Saturday 09 March 2013 from 09h30 to 11h30. It will be held at the Gardens Presbyterian Church situated at 151 Hatfield Street, Gardens, Cape Town (bottom of Orange Street). You can log onto their website www.gardenspc.org.za for directions.
Please confirm your attendance, per return email.
Make use of a surveillance camera to monitor your domestic worker.
93 days
The employer has the onus of proving that the dismissal was fair and lawful. When an employer has installed close circuit video surveillance cameras in order to monitor a domestic worker’s activities and believes he/she has video footage proving some misconduct, such as misappropriation of the employer’s property, the employer must ensure that the video evidence is admissible at the CCMA or any other tribunal.
In order to make surveillance footage admissible employers are advised to make employees aware that they are being monitored by means of security cameras. This can be done verbally but preferably in writing and in a document where an employee consents to such monitoring. Alternatively, the employer can display visible signage at his/her residence reflecting that the premises are being monitored by a surveillance camera/s.
Over and above admissibility, the video evidence should be of acceptable quality:
• The image on the video tape must be clear and must show the alleged misconduct.
• The video must be authenticated; in general this means that it must be shown not to have been tampered with in any way, e.g. it is no good to show an edited version that seeks only to highlight the alleged misconduct
Employers should ensure that they follow the correct disciplinary procedure when the employee commits any act of misconduct. Though there might be a good reason for dismissal, an employer is still required to comply with fair procedure which involves affording the employee the right to state his/ her case. Irrespective of the evidence of the surveillance footage against the employee, the employer must still comply with fair procedure preceding the decision to dismiss.
The employer should issue the employee with a written notice to attend a disciplinary hearing procedure:
• Setting out the charges/ allegations
• Informing the employee of the date, time and venue of the hearing
• Suspending the employee on full pay pending the outcome of the hearing
• Affording the employee adequate time to prepare for the hearing
• Allowing the employee to call witnesses
• Allowing the employee to be represented by a colleague, if any.
For further information on any labour related matters, you can contact Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za
Website: www.capelabour.co.za
MINIMUM WAGE INCREASES FOR DOMESTIC WORKERS
196 days
With effect from 01 December 2012, domestic workers will receive a minimum wage increase. Currently domestic workers who earn a wage of R1625.70 per month will be increased to R1746.00 per month with effect from 01 December 2012.
Even though domestic workers play such an essential role, the minimum wage increase is appalling and domestic workers continue to remain exploited, undervalued employees in our society. Generally, they are marginalised and vulnerable.
The wages that domestic workers earn do not do justice to the contribution they make in the lives of employers and their family in South Africa.
South Africa has enacted legislation to protect domestic workers. The promulgation of Sectoral Determination 7: Domestic Workers in 2002 represented a systematic attempt to regulate conditions of employment to eliminate abuse in this sector. Despite significant improvements, many domestic workers in South Africa are still trapped in the informal economy and unable to exercise their rights.
Despite all the struggles, a large percentage of domestic workers are still not au fait with their rights, are not paid a living wage, are not registered with Unemployment Insurance Fund, are not issued with contracts of employment nor payslips and are not paid overtime. Such conditions are not conducive to a decent working relationship. Domestic workers remain under paid, over worked and unprotected if injured on duty and have no right to a provident fund.
The plight of domestic workers will continue despite demands from the trade union movement and other sectors to improve this sector’s wages and working conditions.
All Domestic workers have rights under the Constitution of South Africa and its labour code of practice. Cape Labour has provided you with a brief description of domestic workers rights in South Africa over here: Domestic Workers Rights.
Bernard Reisner
Cape Labour & Industrial Consultants
3 De Lorentz Street, Gardens, Cape Town, 8001
www.capelabour.co.za
021 423-3959
021-423-2105
082-433-8714
bernard@capelabour.co.za
DOMESTIC WORKER AGENCY LURES FEMALE DOMESTIC WORKER TO THE CITY WITH FALSE PROMISES
196 days
Suzanne van Niekerk, an unemployed domestic worker residing in Clanwilliam, decided to seek work in Cape Town. She was introduced to the owner of a domestic worker agency who persuaded her to move to Cape Town for a job. Mr Jan Swanepoel, the owner of said agency, promised Suzanne a well-paid job as a domestic worker in the affluent suburb of Camps Bay, Cape Town. He paid her transport costs of R300.00 to Cape Town and promised her a salary of R2500.00, per month, free accommodation and food. He said he would issue her with a contract of employment, pay slip and register her with the Unemployment Insurance Fund. Jan did not keep any of his promises even after Suzanne confronted him on several occasions to request same. In fact, she was paid below the minimum wage required for a domestic worker, was not registered for Unemployment Insurance Fund, did not get overtime nor paid sick leave and her relocation cost to Cape Town was deducted from her salary. She had to pay for accommodation and was not given food as promised. She had no alternative but to continue working so that she could support her family in Clanwilliam.
After a period of time, Suzanne lodged a complaint against her employer and Jan Swanepoel, jointly and severally, with a Labour Inspector who was employed by the Department of Labour. Initially the Labour Inspector spoke to the employee and Jan Swanepoel in an endeavour to resolve the above mentioned breaches in the law. Neither the employee nor Jan were willing to sign a written undertaking to comply with the breaches. The Labour Inspector had no option but to issue a compliance order to force both the employer and Jan Swanepoel to comply within a stipulated time period. Both the employer and Jan Swanepoel ignored the compliance order and the matter was referred to the Labour Court. The judge made an order directing that they comply with all the requirements as instructed by the Labour Inspector. The parties eventually acceded to the Labour Court’s order.
Suzanne’s monthly salary was increased in accordance with the minimum wage, she received all short payments and non-payments. She was registered for UIF benefits and all arrears payments were paid to the fund. She received a contract of employment, payslips and all other benefits prescribed in terms of the Sectoral Determination 7: Domestic Worker Sector.
For further information on any labour related matters including uif registration, you can contact
Bernard Reisner:
Cape Labour & Industrial Consultants
3 De Lorentz Street, Gardens, Cape Town, 8001
www.capelabour.co.za
021 423-3959
021-423-2105
082-433-8714
bernard@capelabour.co.za
DOMESTIC WORKER SECTOR BLITZ CONDUCTED BY THE DEPARTMENT OF LABOUR
203 days
The aim of the blitz is to target employers to ensure compliance with legislation. Each year labour inspectors undertake inspections at homes to check whether the employers are complying with Sectoral Determination 7: Domestic worker sector, the Unemployment Insurance Act and the Labour Relations Act.
Labour inspectors have a checklist to verify whether the domestic worker is not being underpaid, that a contract of employment has been drafted and signed by both parties, that all the necessary provisions are contained therein. Namely that it makes reference to overtime, hours of work, meal intervals, payment for public holidays, annual leave, sick leave, family responsibility leave, maternity leave etc.
Inspectors also ensure that the employer is registered as an employer with the Unemployment Insurance Fund and that contributions are made to the fund in terms of the Act.
An employer found in contravention of these laws are issued with the relevant notices to rectify any identified non-compliance issues. If non-compliance persists beyond the prescribed time, compliance orders are issued which may result in enforcement by the Labour Court.
Bernard Reisner
Cape Labour Consultant
3 De Lorentz Street, Gardens, Cape Town, 8001
www.capelabour.co.za
021 423-3959
021-423-2105
082-433-8714
bernard@capelabour.co.za
DOMESTIC WORKER MINIMUM WAGE INCREASES FROM
206 days
DOMESTIC WORKER MINIMUM WAGE INCREASES FROM
1 DECEMBER 2012
Wage Tables for the Domestic Worker Sector
Table 1 Minimum wages for domestic workers who work more than 27 ordinary hours per week
Area A
Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality.
Minimum rates for the period 1 December 2012 to
30 November 2013 Minimum rates for the period
1 December 2013 to
30 November 2014
Hourly Rate (R ) R8.95 Hourly Rate (R )
Previous years minimum wage + CPI*** +1%
Weekly Rate (R ) R402.96 Weekly Rate (R )
Monthly Rate (R ) R1746.00 Monthly Rate (R )
Wages in Area A will be subjected to a CPI plus 1% increase for the period 1 December 2012 to 30 November 2013. The CPI*** (for the lowest quintile) six weeks prior to 1 December 2012 has been 6,4%.This means that wages for this period was calculated as follows: CPI (for the lowest quintile) plus 1% for Area A = 6,4% + 1% =7.4%.
Area B
Areas not mentioned in Area A
Minimum rates for the period 1 December 2012 to 30 November 2013 Minimum rates for the period 1 December 2013 to 30 November 2014
Hourly Rate (R ) R7.65 Hourly Rate (R ) Previous years minimum wage + CPI*** +2%
Weekly Rate (R ) R344.30 Weekly Rate (R )
Monthly Rate (R ) R1491.86 Monthly Rate (R )
Wages in Area B will be subjected to a CPI plus 2% increase for the period 1 December 2012 to 30 November 2013. The CPI*** (for the lowest quintile) six weeks prior to 1 December 2012 has been 6,4%.This means that wages for this period was calculated as follows: CPI (for the lowest quintile) plus 2% for Area B = 6,4% + 2% =8.4%.
Table 2 Minimum wages for domestic workers who work 27 ordinary hours per week or less
Area A
Bergrivier Local Municipality, Breederivier Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality.
Minimum rates for the period 1 December 2012 to 30 November 2013 Minimum rates for the period
1 December 2013 to
30 November 2014
Hourly Rate (R ) R10.48 Hourly Rate (R ) Previous years minimum wage + CPI*** +1% Hourly Rate (R )
Weekly Rate (R ) R285.62 Weekly Rate (R ) Weekly Rate (R )
Monthly Rate (R ) R1237.60 Monthly Rate (R ) Monthly Rate (R )
Wages in Area A will be subjected to a CPI plus 1% increase for the period 1 December 2012 to 30 November 2013. The CPI*** (for the lowest quintile) six weeks prior to 1 December 2012 has been 6,4%.This means that wages for this period was calculated as follows: CPI (for the lowest quintile) plus 1% for Area A = 6,4% + 1% =7.4%.
Area B
Areas not mentioned in Area A
Minimum rates for the period 1 December 2012 to 30 November Minimum rates for the period
1 December 2013 to
30 November 2014
Hourly Rate (R ) R9.03 Hourly Rate (R ) Previous years minimum wage + CPI*** +2% Hourly Rate (R )
Weekly Rate (R ) R243.80 Weekly Rate (R ) Weekly Rate (R )
Monthly Rate (R ) R1056.35 Monthly Rate (R ) Monthly Rate (R )
Wages in Area B will be subjected to a CPI plus 2% increase for the period 1 December 2012 to 30 November 2013. The CPI*** (for the lowest quintile) six weeks prior to 1 December 2012 has been 6,4%.This means that wages for this period was calculated as follows: CPI (for the lowest quintile) plus 2% for Area B = 6,4% + 2% =8.4%.
DISMISSAL MAY NOT AUTOMATICALLY FOLLOW INCARCERATION
217 days
Dismissal may not automatically follow incarceration
The arrest and imprisonment of an employee presents employer’s with significant challenges in that the employee is incarcerated and absent from work.
It is possible that the employee is granted bail and returns to work relatively and quickly.
A different challenge faces employers, however, when bail cannot be raised or is not granted. The employer clearly faces operational challenges in the light of the employee’s absence; the employee on the other hand is incapable of tendering his or her services in accordance with their employment obligations.
On his release, the employer has to afford the employee an opportunity to attend a disciplinary hearing, if so required, before any disciplinary action (if any) is to be imposed against the employee.
For further information on unfair labour practice, you can contact
Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
CONSISTENCY KEY IN WORKPLACE ISSUES
283 days
“Consistency” requires that like offences be treated alike.
Consistency can be achieved by employers adhering to the following key principles:
1. An employer may not suddenly discipline for an act which was overlooked in the past. There is, however, nothing wrong with an employer becoming stricter with regard to certain issues, as long as employees are properly informed of the employer’s intentions in this regard.
2. All employees guilty of a breach of company rules should be charged (discipline should not be instituted selectively against employees).
3. All employees charged should be disciplined in the same way (generally speaking, if two employees are guilty of the same offence they should receive the same punishment).
While the consistent application of discipline is important (and “the hallmark of the progressive labour relations”), there will be times when an “employer may be justified in differentiating between employees who have committed similar offences”. Justification for doing so could be based on length of service, the gravity of the misconduct or seniority.
For further information on Unfair Labour Practice or any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za