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Hiring Workers in South Africa
Wednesday, June 22, 2011
Presenters
Moderator
Yvette Dissel, Senior Counsel,
Boekel De Nerée NV,
Amsterdam, Netherlands
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Presenters
Speakers
Eva Mudely, Partner, Bowman
Gilfillan, Johannesburg, South Africa
Lusanda Raphulu, Senior Associate,
Bowman Gilfillan, Johannesburg,
South Africa
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Recruitment
The Rule: No Unfair Discrimination
• Section 9 of the Constitution
– General prohibition of direct/indirect unfair
discrimination
• Section 6 of the Employment Equity Act
– No direct/indirect unfair discrimination in any
“employment policy or practice”
• Applies to “employees” and “applicants for
employment”
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Recruitment
The “Exceptions”
• Affirmative Action
Inherent Requirements of the Job
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Background Checks
Pre-employment Medical Testing
• Objective and genuinely job related
Credit Checks
• Consent required
Criminal Record Checks
• No consent required but written, informed
consent is however preferable
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Dismissals
Section 185 of the Labour Relations
Act
• Every employee is entitled not to be
unfairly dismissed or to be subjected to an
unfair labour practice
• No “employment-at-will” in South Africa
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Dismissals
Fairness of a Dismissal Is Determined
with Reference to:
• Substantive fairness – the reason for the
dismissal
• Procedural fairness – the manner in which
the dismissal was effected
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Dismissals
Substantive Fairness – the Labour
Relations Act Recognises 4 Reasons:
• Misconduct
• Poor work performance
• Ill health
• Operational requirements of the employer
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Dismissals
Procedural Fairness Requirements
Dependent on the Reason for the
Dismissal
• Essentially means the employee must
be heard before a decision to
terminate is taken
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Dismissals
Remedies for Unfair Dismissal
• Reinstatement/re-employment
• Compensation
• 12 months
• 24 months
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Other Ways the Employment Contract
May Be Terminated
Resignation
• Unilateral act by the employee
• Can only be undone by agreement
between employer and employee
• Best practice: acknowledge resignation
and “accept” it
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Other Ways the Employment Contract
May Be Terminated
Retirement
• Not unfair discrimination on basis of age
IF employee has reached normal/agreed
retirement age
• What if employee continues to work past
retirement age?
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Other Ways the Employment Contract
May Be Terminated
Expiry of Fixed-Term Contract
• Employment contract expires on termination
date
• Such expiry is not regarded as a “dismissal”
• BUT NOT IF employee has a “reasonable
expectation of continued employment”• Repeated renewals
• Promises of renewal14
Expats and Locals
Expats
• Secondment agreements
• Risks:
– CCMA/Labour Court may nevertheless
assume jurisdiction
– Important to ensure as many links as
possible with the host country, e.g., place
of dismissal, payment of salary, place
where tax is paid15
Employment Contracts –
Important Clauses
Duration
• Consider whether the agreement is for a
fixed-time period/project or for an
indefinite period
• If for a fixed period, clearly set out the
commencement and termination dates
Retirement Age
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Employment Contracts –
Important Clauses
Location
• Include a “mobility clause”, i.e. that the
employee agrees that s/he will work
wherever required by the employer
• Also include a provision re travel if
required
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Employment Contracts –
Important Clauses
Hours of Work
• If employee earns in excess of R172 000
p.a.
– May be required to work on weekends/
public holidays/outside of normal working
hours for no additional remuneration
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Employment Contracts –
Important Clauses
Hours of Work (cont’d)
• If employee earns less than R172 000
p.a.
– BCEA working hours provisions apply
– 45 hours per week (9 hours per day if five-
day week)
– Entitled to overtime pay and pay for work
on Sundays and public holidays
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Employment Contracts –
Important Clauses
Employee’s Duties
• Include a list of all duties – but don’t make
it exhaustive
Other Employment
• i.e., that employee may not do outside
work without employer’s prior written
consent
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Employment Contracts –
Important Clauses
Remuneration
• Salary & benefits
• Total cost to company
Leave
• Annual leave
– 21 consecutive days in annual leave cycle
(each period of 12 months)
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Employment Contracts –
Important Clauses
Leave (cont’d)
• Annual leave (cont’d)
– Must be granted by 6th month following
completion of annual leave cycle
– Take at times convenient to employer
– Employee may not be paid in lieu of
annual leave except on termination
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Employment Contracts –
Important Clauses
Leave (cont’d)
• Family responsibility leave
– Three days in annual leave cycle
– For:
• Sickness/birth of a child
• Death of immediate family member
– May not be accumulated and is not paid
upon termination
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Employment Contracts –
Important Clauses
Leave (cont’d)
• Family responsibility leave (cont’d)
– Employer may require reasonable proof of
event
• Sick leave
– 30 days in three-year cycle (if employee
works five days per week)
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Employment Contracts –
Important Clauses
Leave (cont’d)
• Sick leave (cont’d)
– May take all at once, but in first 6 months
of employment, only 1 day for every 26
days worked
– May not be accumulated
– Is not paid in respect of untaken sick leave
on termination
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Employment Contracts –
Important Clauses
Leave (cont’d)
• Maternity leave
– Four consecutive months
– Unpaid – but benefits from UIF
– May not work for six weeks after birth
unless certified fit to do so
– Must give employer reasonable notice
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Employment Contracts –
Important Clauses
• Resources
– E.g., computers, fax machines, e-mail
– No right or expectation of privacy
• Personal information
– May process, retain, use, and transfer
• Company policies
• Confidential information
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Employment Contracts –
Important Clauses
• Termination
– Notice provision
– Right of employer to terminate for reasons
recognised in law (including right to
terminate summarily)
– Return of employer property
– Right to represent employer
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Employment Contracts –
Important Clauses
• Resolution of disputes
– Benefits of private arbitration
• Parties chose the arbitrator –
empowered to appoint an expert
• Parties set the dates – important for
internationally based organisations
• Final & binding
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Employment Contracts –
Important Clauses
• Resolution of disputes (cont’d)
– Disadvantage
• Costs
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Employment Contracts –
Important Clauses
• Restraint of trade
– Proprietary right worthy of protection?
– Must be reasonable
• Area
• Subject-matter
• Time period
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Employment Contracts –
Important Clauses
• Representations by the employee
– Confirm that all the employees’
representations re: qualifications, reasons
for leaving previous employment, etc. are
correct
– If not, employer may take appropriate
disciplinary steps
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Employment Contracts –
Important Clauses
• Work permits
– Employer to ensure that employee is in
possession of valid work permit
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