The Top 5 Questions to Ask a Labour Attorney
Do you have questions that you want to ask a labour attorney? Not sure where to turn or who to ask? When there is an employment law dispute, the stakes are often high and because labour law can be quite complex – especially for those who are unaware of the procedures – we’ve highlighted the 5 most common questions that we get asked all the time.
#1 No Employment Contract? Does this Mean I am Not Protected?
Still waiting for your employment contract? Don’t panic. Just because you don’t have one, it doesn’t mean that you’re not a permanent employee or that you’re not protected. In terms of the BCEA and LRA, an employer must provide an employee with the written particulars of the employment upon commencement of employment. The bottom line is that if you agree to work for someone, and that person agrees to pay you for this work, then you and the employer have entered into a contract of employment, with or without a signed document. If anything, the employer is more at risk, and not you.
#2 How Much Must My Employer Pay Me During Maternity Leave?
Firstly, it is a constitutional right to fall pregnant and any form of discrimination is taken very seriously in South African labour law. An expecting employee may take at least 4 consecutive months of maternity leave to commence 4 weeks before birth. No employee may work for 6 weeks after the birth of a child, unless approved by a doctor. Although, labour legislation provides substantial protection for pregnant employees – when it comes to maternity pay – your employer is not obligated to pay you. What this means is that maternity payment is at their discretion. The employee must claim maternity benefits from the Compensation Fund.
#3 How Much Annual Leave is a Permanent Employee Entitled to?
Based on the Legislation in Section 20, of the Basic Conditions of Employment Act, every employee is entitled to 21 consecutive of days leave on full pay in a cycle of 12 months, or by agreement, 1 day for every 17 days worked, or 1 hour for every 17 hours worked. Furthermore, in terms of Section 21, of the BCEA, employers may not pay employees instead of granting leave, except on termination of employment. What this means is that it is illegal to sell your leave to your employer or for your employer to pay you to work on your leave.
#4 How Much Must I Be Paid for Overtime Work?
Overtime is often a huge problem in businesses throughout South Africa. Often times, many workers are exploited and forced to work hours without receiving the right compensation. Firstly, an employer may not require an employee to work overtime except in accordance with a contract. Secondly, an employee may not be required to work more than 12 hours per day and no more than 10 hours of overtime a week. Most importantly, the employer must pay the employee at least one and a half times the employee’s wage for overtime worked. Should the employee be required to work on Sundays and Public holidays, the employer must remunerate the employee double the employee’s wage.
#5 Can an Employer Reduce My Monthly Salary?
A popular question that gets asked over and over again, your salary is part of your terms and conditions of employment and it cannot be amended without your agreement. A salary reduction is considered as a retrenchment and should a business fail to enter into retrenchment discussions for operational reasons, this falls under unfair labour practice. So, to answer your question, an employer cannot reduce your monthly salary or change your employment position without the correct retrenchment procedure followed. Should they fail to follow the correct retrenchment procedure, they will find themselves paying up to 24 months of compensation at the CCMA headquarters.
Whether you are an employer worried about a lawsuit, or an employee concerned about your rights – for more information on South African labour law and how we can assist you – contact us at reception@www.allardyce.co.za or on 011 234 2125 today.
NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
