Many businesses are finding it ever more challenging dealing with a demanding workforce and staying compliant with Labour Legislation at the same time. This can place a heavy burden on an already over-stretched HR department or for the office manager who is left to fend for him/herself. Staying compliant is not a ‘nice-to-have’ but an absolute must, as the repercussions of non-compliance could be severe and place an even heavier admin burden and cost on the company resources.

We have therefore created this section of our website where we invite you to ask your labour related questions. We will do our utmost to present accurate answers to these questions, and share them so that others too can benefit.

Management and staff should work together to avoid an ‘us-and-them’ culture in the workplace. The intention of Labour Legislation is to ensure that both parties benefit from working together, and we hope that you will find some inspiration and guidance in the question section below.

Is the 3rd of August 2016 a Public Holiday?

We have received questions about whether or not the 3rd August this year, the day the nation goes to the polls, is a public holiday. Our understanding is that to change a working day into a public holiday requires a legal gazetting process. Media releases when the 3rd August was announced by President Zuma stated that the “Minister of Cooperative Governance and Traditional Affairs will follow the necessary legal procedure to proclaim the date and undertake any other requirements”.

It is possible that South Africa should consider voting over weekends in future, as many other countries do, reducing the impact on business. Based on our history, however, it would be fair to assume that this will be gazetted as a public holiday.

Must an employer call for an ambulance if the employee is injured whilst at work or whilst on duty in the performance of their duties?

The Compensation for Occupational Injuries and Diseases Act is clear (section 72 of the Act) that an employer MUST arrange transport for an injured employee (this refers to an employee who gets injured or is injured whilst at work or in the performance of his/her work). Failure to do so means the employer is guilty of an offence.

The employer must arrange for conveyance. Thus the employer can take them or request transport such as an ambulance.

In terms of payment, once a claim is put in to the Director-General (Compensation Commissioner), the ambulance will be paid at their rate and it will be the Commissioner’s responsibility to pay for this.

However if the employer is not registered with COIDA or exempt (they are covered by their own fund and/or medical aid), then the employer or such fund will be responsible for the payment of the ambulance.

It has to be noted that no claim will be considered if the period of illness relates to three days or less. In this case, if it was an injury on duty and an ambulance needs to be called, the same section only makes mention that an employer individually liable has to pay. But if the employer is registered in terms of COIDA, the employer is not individually liable and in such an instance the account for an ambulance would then be for the employee's account.

We would advise that a common sense approach should prevail. If the employee was injured due to their work and it was an accident on duty and not related to the employee’s wilful act (misconduct such as ignoring safety standards and procedures, being drunk etc.) we would suggest that the employer should pay the ambulance.

The Act also states if the injury was related to misconduct such as being intoxicated or any negligence on the part of the employee, the claim may be refused/not awarded. In such an instance then the ambulance account will be for the employee’s account.

Is an employee loan taxable?

According to the Income Tax Act Paragraph 11 of the 7th Schedule where an employer provides loans financed out of his / her own funds to employees greater than R3,000 per annum, a taxable benefit must be added to an employee's salary for the duration of this loan. The taxable benefit will be the amount of interest that the employee(s) would have paid in respect of the tax year, if they were obliged to pay interest at the official interest rate.

The SARS determined interest rate on loans to employees = 6.75%. In other words: An employer should charge interest on a loan at, at least 6.75%. If the interest charged by the employer is less than 6.75%, then the difference in interest payable results in a taxable fringe benefit.

However, certain loans are excluded from this legislation. For more information in this regard, please contact Margaret at mcollins@nspiresolutions.co.za.

May we head-hunt?

Head-hunting is when the organisation is looking for a rare skill set and they know of someone that may meet these particular requirements. Alternatively an agency is used to source high profile candidates (through personal knowledge and research about competitors). These candidates are approached and offered an opportunity to be considered for the particular job, should they be interested. It thus forms part of the recruitment process and is a valuable tool.

It is important to note that this should in no way be construed as if someone has been appointed to the position already should they accept the head-hunter’s offer to be part of the process. This may then or could give rise to the perception that the process is not fair and that the process may be unfair as all appropriate candidates can then not compete on an equal footing. This could be seen as out of line with the intention of the Employment Equity Act, no 55 of 1998 (“EEA”).

The law is silent on headhunting – although we can infer some guidelines from the Labour Relations Act, the EEA and associated good practices. The biggest pitfall seems to be unethical headhunting practices where recruiters err in terms of:

a) how they legally obtain personal information, or
b) misrepresenting the job content and/or client.

The LRA requires of an employer not to unfairly discriminate against an employee or applicant, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility. The EEA demands that every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. The risk with head-hunting is that other applicants could argue that they were not given a fair opportunity to compete for the position. The risk can be mitigated with a detailed job profile outlining the skill requirements and why these are rare and whether time is an issue.

A skills search/head-hunt may safely be used to identify candidates where it can be demonstrated that the traditional advertising methods have proved to or will be ineffective. Once candidates have been identified, the principles of selection on merit must be applied as for any other method of recruitment and selection. Thus once the candidates approached by head-hunting have confirmed their interest, they must go through the appropriate selection process with detailed results, comparing their abilities, knowledge and skills to the required position. It is also advisable to record all the people approached and considered, remaining vigilant against creating unfair discriminatory practices.

Who is the Real Employer?

In the past employers have embarked on often elaborate schemes to circumvent the employer-employee relationship for whatever reason. The reasons range from limiting liability in terms of labour legislation and benefits, it could be to establish services with limited control by placing the risk on the contractor and thus limiting unnecessary costs. Whatever the reason, this is always a sensitive issue and riddled with many pitfalls.

The guidelines used by the CCMA and Courts are the “dominant impression test” – what is the true nature of the relationship between the parties, regardless of how the parties decided to describe the relationship on paper? Section 200A of the Labour Relations Act no 66 of 1995 provides seven possible criteria as an indication of a potential employer-employee relationship, even though the person’s salary is above the threshold, and section 213 states that:” (b) any other person who in any manner assists in carrying on or conducting the business of an employer...” provide further guidance when determining whether a person is an employee or not.

In the recent Labour Court case Melomed Hospital Holdings LTD vs CCMA and others.(15 August 2012) the following factors shed more light on whether an employment relationship exists or not:

 
  • Is it to render a personal service or performing a specified job or producing a specified result?
  • Are the services rendered personally or through others?
  • Is the service on a full time basis and to the exclusion of others (other clients)?
  • Is the person economically dependent on the work?
  • Who provides the “tools of the trade”?
  • Is the person identified or associated with the organisation by external parties as part of that organisation?
  • Is PAYE and UIF deducted?
  • What is the degree of control required over the person?
  • How will the agreement end – for instance, if the person dies, will the agreement cease?
  • Is the work of an ongoing nature? 

The minute you have to “try to make something work”, you should know you are on dangerous territory. The rule of thumb is: when in doubt do not do it!

An employee wants religious leave. How do I treat this?

If you do not have a policy on this or your policy is silent, it is time to test management’s view on this. But no harm in discussing this with them from an informed position.

As this has always been a thorny issue for employers and government, a parliamentary committee has been formed to finalise proposals in dealing with this. But no legislation to this effect has been finalised as yet.  The current position is open to employers in terms of practicality, affordability and their support for inclusivity.

A more lenient employer may allow another category of leave for religious purposes. But there should be a limit on this enabling fairness across the board as differing religions have different number of religious holidays and special days. In general we have found that those employers who can afford it or want to ensure that they create an environment that truly welcomes people from all races, religions and cultures, have allocated a maximum of two days for religious leave. Thus if an employee needs more religious leave than this, the implication is that anything in addition to the two days will then have to be taken as annual or unpaid leave.

Alternatively the way it is often dealt with is that employees who wish to take religious leave must use their annual leave allocation, especially where the employer has given a generous leave allocation (anything in excess of 15 days per annum) or then they can always apply for unpaid leave. But beware, this is not something an employee should be allowed to take after the fact. As with any other leave, it should be planned for and should an employee be observant of their religious customs and traditions, these days do not just “spring” on you and happen. Employees should be made aware that they should apply in advance for these days.

It is recommended that religious holidays and requirements should be something that any prudent employer deals with during the induction period, outlining the benefits or processes available to employees. This should also be recorded on any database to remind you to wish them for their holidays and/or remember when finalising catering arrangements. Always treat this very sensitively and with respect.

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