It’s alarming how quickly the COVID – 19 (or “Coronavirus“) is spreading. Employers and employees need to do all they can to limit the impact of this on businesses, as our economy is already under severe strain! Businesses need to stay open and keep doing business or else!
Here are some answers we have sourced to the most common questions being asked right now:
- What is an employee’s sick leave entitlement?
The Basic Conditions of Employment Act (“BCEA”) regulates sick leave entitlement. Each permanent employee is entitled to a “sick leave cycle” – 36 months’ employment with the same employer. During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. Usually (for an employee who works 5 days a week) this equates to 30 days’ sick leave per 36 months of employment.
- Must an employee be paid for sick leave?
An employer must pay an employee for sick leave: a) the wage the employee would ordinarily have received for work on that day; and b) on the employee’s usual pay day.
- When is an employer not required to pay sick leave?
An employer is not required to pay an employee for sick leave if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
- What are the basic requirements for the medical certificate?
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.
- What if sick leave is exhausted?
An employer is not required to pay employees for sick leave taken when the sick leave entitlement has been exhausted. However, we recommend that authorised unpaid leave be considered. In those instances, the employee must claim illness benefits in terms of the Unemployment Insurance Act 63 of 2001 (“UIA“). In terms of section 20 of the UIA, a contributor is entitled to the illness benefits contemplated in the UIA for any period of illness if, inter alia, the contributor is unable to perform work on account of illness.
- When can an employee be dismissed due to the Coronavirus?
In terms of Schedule 8: Code of Good Practice Dismissals, an employer must investigate the extent of the illness if the employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered. The factors to take into account in considering alternatives to dismissal include, the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured. During this process, the ill employee should be given an opportunity to make recommendations as well. Only once all these processes have been followed and no alternative to dismissal found, an employer may consider dismissal.
- May employers consider retrenchments due to the impact of the Coronavirus?
Section 189 of the Labour Relations Act 66 of 1995 applies if an employer contemplates dismissing one or more of its employees for reasons based on its operational requirements. “Operational requirements” is defined as requirements based on the economic, technological, structural or similar needs of the employer.
A retrenchment is as a result of no fault on the part of the employee. In the circumstances, it is not an opportunity for an employer to terminate the employment of ill employees.
At this point, the Coronavirus is unlikely to trigger an operational need. The recommended period for recovery/isolation is 14 days – this in itself cannot trigger a need to retrench. However, should a large number of employees be infected, an operational need could possibly arise in future.
- What can be done about employees who refuse to come to work?
Employees remain obligated to come to work, unless instructed otherwise by their employers. Employees who refuse to come to work must have a valid reason for their absence. The mere presence of the Coronavirus in South Africa does not constitute a valid reason to stay away from work. Employees who stay away from work without a valid reason, may face disciplinary action.. We encourage employees to rather speak to their employers about their concerns before making a decision to stay at home, without authorisation.
- Do employees have the right to work from home?
Employees do not have a right to work from home. Working from home may be considered by employers but should not be implemented by employees without the employer’s consent. We encourage employees to rather speak to their employers about their concerns.
- May employees be required to work from home?
Yes. Working from home may be permitted in the discretion of the employer. This is not always viable but could be considered in a corporate environment. Should employers consider this option, we recommend that clear guidelines be set for employees. This may include that the working environment must be safe, the employee must have a secure telephone line and Wi-Fi connection and employees should remain within travelling distance of the office.
- May an employee’s professional or personal travel plans be restricted?
Professional travel plans may be changed or prohibited. However, an employer does not have the right to dictate whether an employee may travel during his/her annual leave or weekends. Employers may, however, require their employees to disclose if they have travelled to any specific locations in order for the employer to assess the risk to other employees or customers.
- As an employer, what are my obligations?
The Occupational Health and Safety Act 85 of 1993 (“OHSA“), requires an employer to bring about and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees. For this reason, we recommend that employers adopt contingency plans and communicate with its employees regarding the measures it will adopt in securing the workplace. This may include –
- the prohibition of handshakes or physical contact;
- limitation on meetings;
- sufficient supply of hand sanitizer; or
- requiring employees to work from home, should they feel sick in any way.
It may also be necessary to relax the sick leave policy or to permit more flexibility in working arrangements.
- As an employee, what are my obligations?
The employee and the employer share the responsibility for health in the workplace. Therefore both the employee and employer must pro-actively identify dangers and develop control measures to make the workplace safe. For this reason, employees should abide by any policies adopted by the employer to curb the spread of the Coronavirus. Employees should also inform their employer if they are aware of any risk to the health of their colleagues.
- Practical Tips
The following practical tips may be considered:
14.1 The prohibition of unnecessary meetings and the increased use of video conferencing facilities.
14.2 The prohibition of any form of physical contact, specifically hugs and handshakes.
14.3 Requiring employees to report to their manager if they feel unwell in order to possibly allow that employee to work from home.
14.4 Requiring employees to disclose if they have travelled to a high-risk area recently.
14.5 A rule that requires employees to wash their hands regularly.
*The answers to these questions are always subject to the specific facts of each matter and we recommend that you contact an employment law expert for advice applicable to your facts.
Share with your network!
Consumer Protection Act on overcharging and excessive pricing of goods and services during the lock down period.
After the announcement that our country might go on a lockdown a few businesses, retail shops and companies have been engaging in the practice of price increment and excessive charging of goods and services. This is based on the fact that most goods and services have been on higher demand as people are preparing for the lockdown. The excessive charging of goods has been mostly spotted on food items and cleaning essentials including bath soaps and sanitizers.
Fairness
The Competition Commission promotes a fair, accessible and sustainable market for consumer products and services and the Consumer Protection Act prohibits certain unfair marketing business practices.
Prohibitions
Suppliers are not permitted to charge unfair prices for the same goods and services as this allows competitors in the market to agree on price-fixing rather than competing with each other. As a consumer, you have the right to be treated equally, irrespective of gender, race, socio-economic status or geographical location.
Your Right to fairness
Your right to fair and reasonable prices gives rise to your right to lodge a complaint against any business or company unfairly charging excessive prices and misleading consumers as means of competition or making up for the loss on quite seasons. The National Consumer Commission in connection with the Equality Court allows for consumers to approach it for complaints against prohibited and unfair practices.
Reporting cases
Should you find yourself facing a situation of unfair excessive pricing of goods, the Competition Commission has appealed that each consumer faced with the situation should not hesitate to report each case of unfair treatment against consumers. Our firm promotes equality and fair treatment of consumers.
For more information contact Charmaine on charmaine@schwenninc.co.za.
Written by Portia Dlamini.
Building Alterations: When do you need Municipal approval?
Large and small building works are commonplace in most neighbourhoods. Do you know when you are required to have plans drawn up and obtain municipal approval for your alterations at home?
You will require plans to be drawn up, quite obviously for new homes. You will also need plans drawn up for additions to your existing building structure or alterations to your existing building structure. This includes your exterior wall.
What may not be so obvious is that you will need building plans drawn up for the following internal alterations:
If you undertake minor building works, you still need to contact the building inspectorate at your local municipality who will inspect and provide the necessary exemption. Sometimes you may need to submit a drawing. You should not require building plans to be drawn for the following minor building works:
It is always recommended that you employ a qualified professional to assist you with any alterations to your property and they should be able to advise you if plans are required. As the owner of the property, it is completely your responsibility to ensure that everything is done properly. Please remember that there are potential criminal implications if you go ahead with building on your property without the correct approval in place. You should always contact your local Building Inspectorate to ensure that the correct procedures have been followed before you start any building works.
For any information please do not hesitate to contact Liza Bagley on liza@schwenninc.co.za.
Written by Liza Bagley.
Access to children during the national shut down.
We are living through an unprecedented time in South Africa and the world.
An anomaly that now arises is what happens to divorced/separated/unmarried parents and their contact arrangements with their children over the national shut down.
Parents and children have certain rights. You will need to bear in mind, however, that certain rights are restricted in this state of disaster management. There will be limited, if any, access to courts over this time.
Parents should have an arrangement in place in terms of an agreement or a court order. Children moving between their respective parents now becomes potentially illegal.
The line will be drawn at considering their “home” to be the home of the primary caregiver. If the parents have joint primary care, it is advisable that the parents reach an agreement urgently regarding care over this time period, without the need for children to move between homes, except in the case of a medical emergency.
Please remember that maintenance is still payable between the parties, regardless of where the children reside during the shut down period. Any variations of maintenance needs to be by agreement.
For more information contact Liza on Liza@schwenninc.co.za.
Contract law and COVID-19 : What now?
Have you considered how COVID – 19 (or “Coronavirus“) affects any of your contracts in place?
The last thing that you want is issues with breach of contract on technicalities when we are all working so hard to keep our heads above water and our health in tact!
Some gremlins to look out for – what if…
We would recommend a minor addendum to be signed so everyone knows where they stand.
There’s a lot more to think of. Contact us, we are a call or email away.
Charmaine Schwenn
charmaine@schwenninc.co.za
031-0030630
www.schwenninc.co.za
Coronavirus and how it relates to Labour Law today.
It’s alarming how quickly the COVID – 19 (or “Coronavirus“) is spreading. Employers and employees need to do all they can to limit the impact of this on businesses, as our economy is already under severe strain! Businesses need to stay open and keep doing business or else!
Here are some answers we have sourced to the most common questions being asked right now:
The Basic Conditions of Employment Act (“BCEA”) regulates sick leave entitlement. Each permanent employee is entitled to a “sick leave cycle” – 36 months’ employment with the same employer. During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. Usually (for an employee who works 5 days a week) this equates to 30 days’ sick leave per 36 months of employment.
An employer must pay an employee for sick leave: a) the wage the employee would ordinarily have received for work on that day; and b) on the employee’s usual pay day.
An employer is not required to pay an employee for sick leave if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
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.
An employer is not required to pay employees for sick leave taken when the sick leave entitlement has been exhausted. However, we recommend that authorised unpaid leave be considered. In those instances, the employee must claim illness benefits in terms of the Unemployment Insurance Act 63 of 2001 (“UIA“). In terms of section 20 of the UIA, a contributor is entitled to the illness benefits contemplated in the UIA for any period of illness if, inter alia, the contributor is unable to perform work on account of illness.
In terms of Schedule 8: Code of Good Practice Dismissals, an employer must investigate the extent of the illness if the employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered. The factors to take into account in considering alternatives to dismissal include, the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured. During this process, the ill employee should be given an opportunity to make recommendations as well. Only once all these processes have been followed and no alternative to dismissal found, an employer may consider dismissal.
Section 189 of the Labour Relations Act 66 of 1995 applies if an employer contemplates dismissing one or more of its employees for reasons based on its operational requirements. “Operational requirements” is defined as requirements based on the economic, technological, structural or similar needs of the employer.
A retrenchment is as a result of no fault on the part of the employee. In the circumstances, it is not an opportunity for an employer to terminate the employment of ill employees.
At this point, the Coronavirus is unlikely to trigger an operational need. The recommended period for recovery/isolation is 14 days – this in itself cannot trigger a need to retrench. However, should a large number of employees be infected, an operational need could possibly arise in future.
Employees remain obligated to come to work, unless instructed otherwise by their employers. Employees who refuse to come to work must have a valid reason for their absence. The mere presence of the Coronavirus in South Africa does not constitute a valid reason to stay away from work. Employees who stay away from work without a valid reason, may face disciplinary action.. We encourage employees to rather speak to their employers about their concerns before making a decision to stay at home, without authorisation.
Employees do not have a right to work from home. Working from home may be considered by employers but should not be implemented by employees without the employer’s consent. We encourage employees to rather speak to their employers about their concerns.
Yes. Working from home may be permitted in the discretion of the employer. This is not always viable but could be considered in a corporate environment. Should employers consider this option, we recommend that clear guidelines be set for employees. This may include that the working environment must be safe, the employee must have a secure telephone line and Wi-Fi connection and employees should remain within travelling distance of the office.
Professional travel plans may be changed or prohibited. However, an employer does not have the right to dictate whether an employee may travel during his/her annual leave or weekends. Employers may, however, require their employees to disclose if they have travelled to any specific locations in order for the employer to assess the risk to other employees or customers.
The Occupational Health and Safety Act 85 of 1993 (“OHSA“), requires an employer to bring about and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees. For this reason, we recommend that employers adopt contingency plans and communicate with its employees regarding the measures it will adopt in securing the workplace. This may include –
It may also be necessary to relax the sick leave policy or to permit more flexibility in working arrangements.
The employee and the employer share the responsibility for health in the workplace. Therefore both the employee and employer must pro-actively identify dangers and develop control measures to make the workplace safe. For this reason, employees should abide by any policies adopted by the employer to curb the spread of the Coronavirus. Employees should also inform their employer if they are aware of any risk to the health of their colleagues.
The following practical tips may be considered:
14.1 The prohibition of unnecessary meetings and the increased use of video conferencing facilities.
14.2 The prohibition of any form of physical contact, specifically hugs and handshakes.
14.3 Requiring employees to report to their manager if they feel unwell in order to possibly allow that employee to work from home.
14.4 Requiring employees to disclose if they have travelled to a high-risk area recently.
14.5 A rule that requires employees to wash their hands regularly.
*The answers to these questions are always subject to the specific facts of each matter and we recommend that you contact an employment law expert for advice applicable to your facts.
Share with your network!
South Africa’s marriage systems are as varied as our cultures.
South Africa’s marriage systems are as varied as our cultures.
This has been recognised by our courts and the legislature, particularly in terms of the Recognition of Customary Marriages Act 120 of 1998.
Subject to complying with the following, Customary Marriages are recognised as valid and legal and subject to Inheritance and Divorce Laws :
1.The marriage must be negotiated, entered into or celebrated in accordance with customary law. This means that the marriage must be entered into in line with the traditions and customs of the parties.
2.The parties who are getting married must be 18 years or older. If one or more of the parties are minors (below the age of 18 years), both his/her parents or legal guardian must give consent to the marriage.
3.The parties must also be competent to marry each other, meaning that they must not be blood relatives. For example, a brother and sister are not allowed to marry each other.
4.Both parties’ consent is required for the marriage to be valid. A person who cannot give consent, such as a mentally insane person, will not be able to get married.
5.The marriage must be lawful.
For any advice on your marital regime or the consequences of marriage please contact our offices on 031 003 0630 or email Liza@schwenninc.co.za.
Steps involved in the transfer process when selling and buying property
When selling, buying and transferring property from the seller’s name to the purchaser’s name the legal term used for the transfer process from owner to owner is called conveyancing.
The transfer of property is mainly done by conveyancers (attorneys who specialize in property who are appointed to administer the transfer process). It takes one to properly understand the conveyancing/ transfer process and making sure that all the required documents are in order from the beginning of the process till transfer and registration of the property under the purchaser’s name.
1.1. Seller 1.6. Bond Registration Attorneys
1.2. Purchaser 1.7. Bank
1.3. Seller’s Attorneys 1.8. Municipality
1.4. Purchaser’s Attorneys 1.9. SARS
1.5. Bond Cancellation Attorneys 1.10 Deeds Office
The following are steps that will take place during the transfer process:
Before the transferring process commences and whenever a sale is to take place between two parties an offer to purchase and an acceptance must be made. The Seller and the Purchaser are required to sign an offer to purchase which is then sent to the Seller’s attorneys. The Purchaser’s Attorneys will then request for FICA documents from the Seller and the Purchaser to make an application for a bond at the bank. FICA documents will include a copy of ID document (SA Citizens) / Passport (Foreign Nationals) Proof of residential address less than three months old (for example utility bill, store account statement, bank document with residential address, DSTV account, municipal letter).
Upon signing of the sale agreement the Purchaser is required to pay a deposit into the transferring attorney’s trust account which is held until registration is finalized. The bank will then approve the bond on behalf of the Purchaser.
The existing bond cancellation under the Seller’s name takes place and registration of the new bond on the Purchaser’s name takes place. Registration of the new bond is done by bond registration attorneys. The bond cancellation attorneys have the duty to send a copy of the title deed and cancellation figures to the transferring attorneys for the Purchaser’s attorneys to issue guarantees to cancel the existing bond. Property guarantees provide assurance in transactions involving the sale of fixed property, and/or in agreements to provide finance against the security of a mortgage bond over the fixed property.
The transferring attorneys have the duty to draft the transferring documents and get both the Seller and the Purchaser to sign the documents. The bond registration attorney also has the duty to draft bond documents and have the Purchaser to sign the documents and make payment for the bond registration ‘bond registration fees’.
The transferring attorneys will request figures from the municipality to make sure that all the Seller’s rates and taxes are paid in accordance and are up to date before a clearance certificate is lodged with the Deeds Office.
Transfer duty is a levy or tax applied whenever you sell, buy or transfer property. Transfer duty is paying by the person acquiring the property (Purchaser), within six months of the date of acquisition.
Once the transfer duty has been paid the transferring attorney is required to lodge all documents together with the new bond and old bond cancellation at Deeds Office which is a government department responsible for the registration, management and maintenance of the property registry in South Africa.
If the Deeds Office is satisfied and has approved all documents lodged the property then is registered in the new owner’s name which might approximately take 8-10 working days provided there are no changes. The rights of ownership of the property will then vest upon the purchaser as the new rightful owner of the property.
It might seem like a long and exhausting process to go through but it’s worth the sweat of a brow to a successful sale and owning of a new property. Should you find yourself in a position of selling or buying property kindly let us handle the transfer process on your behalf by contacting our offices SCHWENN INC @ 031 003 0630 or send an email to Charmaine Schwenn @ charmaine@schwenninc.co.za.
Written By: Portia Dlamini
What are the duties of employees and employers?
The rights of an employee or employer come from many sources and one of the main sources as with many other laws come from Common law.
South Africa’s Common law is a mixture of Roman-Dutch law and English law. These sources have in turn been formalised by Legislation like the Basic Conditions of Employment Act, the Labour Relationship Act and others.
However, as times have changed so have our laws and with the many amendments to the Labour Relations Act as well as the Basic Conditions of Employment Act employers and employees may become confused on what are their most pivotal duties and rights are in respect of employment.
Here are some tips for you:
The Employee’s Duties:
The Employers Duties:
An employment contract is an agreement between two parties (employer and employee) who hold themselves liable for the obligations as discussed, described and agreed to within that contract or agreement.
For more advice on your rights and obligations and any other labour related query contact our offices today at Charmaine@schwenninc.co.za or call us on 031 003 0630.
School Fee – Reduction for single parents
SINGLE PARENTS WILL PAY LOWER SCHOOL FEES
In a recent SCA (Supreme Court of Appeal) Court case – Head of Department: Western Cape Education Department & another v S (Women’s Legal Centre as Amicus Curiae) (1209/2016) [2017] ZASCA 187 (13 December 2017) it was found that a single parent could and should be given a school exemption.
Section 40 of the South African Schools Act No. 84 of 1996 states that:
40 (1) “A parent is liable to pay the school fees determined in terms of section 39 unless or to the extent that he or she has been exempted from payment in terms of this Act.”
40 (2) goes on to say a “parent may appeal to the Head of Department against a decision of a governing
body regarding the exemption of such parent from payment of school fees.”
Single parents will no longer need their ex-spouses to qualify for a school fees exemption, this followed on from a case concerning a Western Cape mother who applied for a school fees exemption. The school concerned wanted both her and her estranged ex-husband to fill in a form, because they both constituted a “family unit” even though she had custody of the daughter.
The mother of the child found that this process discriminatory, humiliating and unreasonable, the SCA Judgement, therefore made it clear that in circumstances where one parent has refused or failed to provide their income details, public schools shall grant a conditional fee exemption to the parent who has custody over the child, having regard to that parent’s income.
This conditional fee exemption shall be similar to an exemption that a parent would receive if there were the only parent of the learner concerned.
The granting of such a conditional exemption will not limit the public school from taking legal steps to enforce payment by the other parent for the balance of the school fees. This ensures that non-custodial parents are held responsible where required.
We hope that all our readers enjoy the festive season and have enjoyed our blogs. Should you have any legal issues, kindly note our offices are closed from the 24th of December 2019 until the 6th of January 2020. If you need to contact our offices in between that period, contact Charmaine Schwenn on 083 789 7638 or email charmaine@schwenninc.co.za.
Labour law – know your rights regarding your leave.
It’s that time of year where everyone is burnt out, getting sick and generally just trying to plan their holidays. Do you understand your employment contract and how much leave you are entitled to?
Let’s take a look at the types of leave an employee is afforded according to South African law:
Annual Leave:
According to the Employment Equity Act, an employee must be working more than 14 hours a month to be entitled to leave. A leave cycle is a period of 12 months during which you are entitled to 21 consecutive days of off with full remuneration. This is equal to 15 working days leave if you work a 5-day working week and 18 working days leave if you work a 6-day working week. You are entitled to roughly 1.25 days leave a month per cycle.
Should an employee not take their leave within 6 months after the end of the annual leave cycle then the employer cannot refuse to give the employee permission to take leave unless this has been agreed otherwise in their contract of employment.
Sick Leave:
Sick leave is a total of six weeks in every three-year cycle which is calculated from the first day of employment. For an employee who has a five-day working week this would equal 30 days full paid leave. However, during the first six months of employment, the employee is only entitled to take one-day sick leave for every 26 days worked. If you do not take your sick leave within that cycle you forfeit same.
If you are absent from work for more than two consecutive days then you have to produce a medical certificate to your employer.
Maternity Leave:
Maternity leave is for a period of four months and can start one month before the date of delivery of the baby. The employee legally cannot return to work for a period of six weeks after giving birth.
An employee must notify the employer in writing four weeks before the expected maternity leave commences and the date that they intend to return to work. During this leave, an Employer must keep that person’s job open for them to return. Your employer is not obliged to pay you during this time and you will be entitled to claim compensation from the Unemployment Insurance Fund.
Family Responsibility Leave:
Family responsibility leave is three days a year which is forfeited if not used within that year and is only available to employees who have worked for their employer longer then four months and work more then four days a week. Previously fathers were not afforded the same rights as mothers when their children were born but the new Labour Law Amendment Bill will since change same.
This type of leave can be taken when your child is born, sick or when a relative passes away, however, your employer may require proof that the event took place.
It is therefore important for employees to understand their rights with regards to their leave and their responsibility to follow the act as well as their employment contracts. If you have any questions regarding your employment contracts contact us today on 031 003 0630 or email us on info@schwenninc.co.za.