All About HR FAQ

According to section 29 of the Basic conditions of employment Act, every employee should receive written particulars of employment, unless he/she works less than 24 hours per month for the said employer. The act then confirms that this document often referred to as the employment contract should include employee and employer full details but also the employee’s job and duties, place of work, when the contract will commence and the length of the employment agreement. Further it should include hours of work, compensation or payment terms, benefits, leave and when required any company specific company terms or agreements.

The simple answer is yes, a company may dismiss an employee on first offence, but this would normally be for serious transgressions that damage the trust relationship so severely that a continued relationship is not foreseeable. Examples of such transgressions include but is not limited to Theft, Assault, Gross negligence, Sexual harassment, Dishonesty etc.

The labour relations Act defines that a company should ensure procedural and substantive fairness in termination. For substantive fairness one needs to ensure there is a valid reason for dismissal. But on procedure a disciplinary hearing should precede any termination for misconduct. To chair a disciplinary enquiry effectively, it is important to have a chairperson that will remain impartial, follow established procedures, and ensure that all parties are given a fair opportunity to present their case. Other elements that need to be adhered to inclusion of interpreters where due, representatives and witnesses and ensuring cross examination is allowed to all parties. It is advisable for the chairperson to document / record the enquiry process and provide a written outcome in form of report and dismissal notice were due.

Should an employee be dismissed for misconduct, he/she will only be entitled to payment up to the last day he/she worked or day the company issued the termination notice, as well as any unused annual leave. Should the employee be indebted to the company those amounts may also be deducted from final payment on condition of a signed AOD. Should an employee be dismissed for performance, he/she will only be entitled to payment up to the last day he/she worked or day the company issued the termination notice, as well as any unused annual leave. Should the employee be indebted to the company those amounts may also be deducted from final payment on condition of a signed AOD. HOWEVER, added to this will then also be notice pay in line with period of employment which is normally 1 week within the first 6 months, 2 weeks if terminated after 6 months but before 12 months, and 4 weeks’ notice after being employed for 12 months or more. Should an employee be dismissed for operational requirements (Retrenched), he/she will only be entitled to payment up to the last day he/she worked or day the company issued the termination notice, as well as any unused annual leave. Should the employee be indebted to the company those amounts may also be deducted from final payment on condition of a signed AOD. In addition to this an employee will also be entitled to notice pay as explained above under payment terms under performance termination (1 week, 2 weeks or 4 weeks depending on length of employment) as well as severance pay to the value of 1 week per COMPLETED year of service.

It is important to set clear and measurable performance goals, provide regular feedback, and involve employees in the process. It is also important to ensure that the system is consistent and unbiased. Should areas of under performance be identified to then provide relevant assistance, guidance counselling and training but also provide improvement time after which performance is re-evaluated. Should an employee be dismissed for performance, he/she will only be entitled to payment up to the last day he/she worked or day the company issued the termination notice, as well as any unused annual leave. Should the employee be indebted to the company those amounts may also be deducted from final payment on condition of a signed AOD. HOWEVER, added to this will then also be notice pay in line with period of employment which is normally 1 week within the first 6 months, 2 weeks if terminated after 6 months but before 12 months, and 4 weeks’ notice after being employed for 12 months or more. Should an employee be dismissed for operational requirements (Retrenched), he/she will only be entitled to payment up to the last day he/she worked or day the company issued the termination notice, as well as any unused annual leave. Should the employee be indebted to the company those amounts may also be deducted from final payment on condition of a signed AOD. In addition to this an employee will also be entitled to notice pay as explained above under payment terms under performance termination (1 week, 2 weeks or 4 weeks depending on length of employment) as well as severance pay to the value of 1 week per COMPLETED year of service.

Common HR policies and procedures include those related to Rules of the business in the form of a disciplinary code that outlines the conduct requirements and potential outcomes if breached, also policies on attendance, leave, substance abuse, recruitment, training and development, health and safety.Should an employee be dismissed for operational requirements (Retrenched), he/she will only be entitled to payment up to the last day he/she worked or day the company issued the termination notice, as well as any unused annual leave. Should the employee be indebted to the company those amounts may also be deducted from final payment on condition of a signed AOD. In addition to this an employee will also be entitled to notice pay as explained above under payment terms under performance termination (1 week, 2 weeks or 4 weeks depending on length of employment) as well as severance pay to the value of 1 week per COMPLETED year of service.

Sexual harassment is any unwanted attention of a sexual nature that takes place in the workplace. This is any kind of sexual behaviour that makes you feel uncomfortable, and can be physical (Touching), Verbal (Unwelcome sexual jokes or comments/ Unwanted questions about your sex life) or visual (Being exposed to unwanted gestures or clothing etc) The Labour Relations Act is the main act that deals with sexual harassment in the workplace. It has a Code of Good Practice on Sexual Harassment that sets out the best ways to deal with complaints about sexual harassment. Companies should understand the seriousness of these charges as a victim of sexual assault has the right to press separate criminal and/or civil charges against an alleged perpetrator, and the legal rights of the victim are in no way limited by this code. Normally charges of sexual harassment will be dismissible.

Best practices for restructuring a company include developing a clear and detailed plan, defining reasons for restructuring and why individuals are selected and how it may affect them. Section 189 of the Labour relations Act provides clear guidance on what information should then be communicated to all employees, after which a consensus seeking process of consultation follow to providing support and resources to help employees through the transition.The Labour Relations Act is the main act that deals with sexual harassment in the workplace. It has a Code of Good Practice on Sexual Harassment that sets out the best ways to deal with complaints about sexual harassment. Companies should understand the seriousness of these charges as a victim of sexual assault has the right to press separate criminal and/or civil charges against an alleged perpetrator, and the legal rights of the victim are in no way limited by this code. Normally charges of sexual harassment will be dismissible.

To ensure compliance with labour laws, employers should stay informed about the laws that apply to their business, and have policies and procedures in place to comply with those laws. It is also important to provide training to employees and managers. However, many managers are not proficient in understanding these laws and may be burdened to ensure the correct understanding and application of the laws, companies may outsource their HR then to specialists like All About HR to ensure legal compliance.

The rule according to law would be that a contract of employment dictates hours employees is required to work. Should an employee tender their services but not be able to work due to any unforeseen circumstances e.g. loadshedding, or acts of nature, salaries will remain payable. Unfortunately, employers may not apply the “no work no pay principle” unless provision has been made in the employment contract or in the main agreement for the implementation of short time during load shedding. If employees present themselves for work, they must get paid. This stems from the common law principle that an employee is entitled to payment when they tender their service, and not depending on whether there is work for them to do or not. If short time during load shedding is provided in the employment contract, depending on what the clause specifies, the “no work no pay” principle may apply and employees may be sent home during load shedding. This is however based on the provision that if an employee is sent home for the day, they would still be entitled to a minimum of 4 hours’ wages irrespective of whether the employee worked less, as per the amended Basic Conditions of Employment Act.