Labour law specialist, Adv Lukas du Preez, provides employers with a summary of the most topical current minimum conditions of employment to assist employers.
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Keeping up with the conditions of employment
Labour legislation covering minimum conditions of employment in South Africa is constantly changing, making it difficult for employers to keep up with the latest requirements.
Legislative amendments, new regulations, sectoral determinations and guidelines are often implemented.
Labour law specialist from George, Adv Lukas du Preez, has provided George Herald with a summary of the most topical current minimum conditions of employment to assist employers in this regard.
Labour legislation covering minimum conditions of employment in South Africa is constantly changing, making it difficult for employers to keep up with the latest requirements.
Legislative amendments, new regulations, sectoral determinations and guidelines are often implemented. What follows hereunder, is a summary of the most topical current minimum conditions of employment to assist employers in this regard.
1. Leave
(Note: The provisions hereunder related to all forms of leave, only apply to employees who work more than 24 hours a month for an employer).
1.1 Annual leave
Paid leave of 21 consecutive days in each leave cycle is applicable, or by agreement one day paid leave for every 17 days the employee worked (or was entitled to be paid), or one hour for every 17 hours the employee worked (or was entitled to be paid). A leave cycle is a period of 12 months after commencing employment, or 12 months after completion of the previous leave cycle with same employer.
An employer must grant annual leave not later than 6 months after the end of the relevant annual leave cycle. The above-mentioned allocation may be increased in individual employment contracts but not decreased.
1.2 Sick leave
An employee is entitled to paid sick leave in a sick leave cycle of 36 months, equivalent to the number of days such employee would normally work during a period of 6 weeks, eg. 30 days paid sick for an employee who works 5 days a week. The sick leave cycle starts at the commencement of employment with that employer, or upon the completion of the previous sick leave cycle. During the first 6 months of employment, an employee is entitled to 1 (one) day’s paid sick leave for every 26 days worked for the relevant employer.
The above-mentioned allocation may be increased in individual contracts but not decreased.
An employer is not required to pay an employee in respect of absence from work for more than 2 consecutive days, or on more than 2 occasions during an 8 week period unless such employee, at the request of the employer, produces a medical certificate stating that the employee was unable to perform normal duties for the duration of the employee’s absence on account of sickness or injury.
A medical certificate must be issued and signed by a medical practitioner or any other person (see hereunder) certified to diagnose and treat patients registered as such with a relevant legally established professional council.
The certificate must state that the employee was unable to perform duties because of illness or injury and that such diagnoses is based on the professional opinion of the relevant medical practitioner. A certificate that merely states that the practitioner “saw the patient” or “ was informed by the patient”, is not considered to be a valid medical certificate.
This is so because the practitioner did not declare that in his/her professional opinion, the employee was unable to perform normal duties due to illness or injury. A backdated `medical certificate could be accepted, provided that it clearly stipulates that in the professional opinion of the practitioner, the employee was unable to perform normal duties during such backdated period.
Sick leave should also not be allowed for the following: routine check-ups, tests and collecting medicine from the pharmacy.
The following persons are regarded as professional medical practitioners:
- Doctors with an MBChB degree registered with the Health Professions Council of SA (“The Council”);
- Dentists registered with the Council;
- Psychologists with a masters degree in research, counseling and/or clinical psychology, registered with the Council;
- Any other medical practitioner registered with the Council, eg. practitioners registered under the Allied Health Service Professions act, 1982: traditional healers my only issue valid medical certificates if they meet these requirements.
- An examination by a nurse- or any other person who is not qualified to carry out examinations and diagnosis is not acceptable. A nurse must possess an additional qualification in Clinical Nursing Science, Treatment and Care and Occupational Health Nursing before being competent to issue sick notes;
A valid sick note or certificate must contain the following details:
- The name and qualifications of the person issuing the certificate;
- Relevant contact details and physical address;
- A proper practice- or registration number;
- Words to the effect that “ I have examined (name) and found him/her unfit for normal duties for the following period……”. An exact diagnosis need not be given due to doctor/patient privilege;
- The date of the examination and the signature of the practitioner;
- Certificates that are illegible or have been altered should be rejected. The abuse of sick leave or alteration of certificates by an employee should be subject to disciplinary measures.
1.3 Maternity leave
A female employee is entitled to at least four consecutive months unpaid maternity leave (the employee may of course claim UIF benefits), which leave may commence at any time within 4 weeks before the expected date of birth unless otherwise agreed, or on a date from which the medical practitioner or midwife certifies that it is necessary for the health of the employee or the unborn child.
The employee may not work for 6 weeks after the birth of the child unless a medical practitioner / midwife certifies that she is fit to work.
It is an automatic unfair dismissal (with the remedy of up to 24 months compensation in salary and/or reinstatement), if an employee were dismissed due to pregnancy.
1.4 Paternity leave
Before 2020, paternity leave was not legally obligatory. The legal position now is that an employee (also a partner to a same sex couple) who has been in the employ of an employer for at least 13 weeks, is entitled to 10 days unpaid leave (UIF may be claimed) for the birth of his/her child.
1.5 Family responsibility leave
Three (3) days paid leave is available during each annual leave cycle to an employee who works at least 4 days a week for an employer and where such employee has been in the employment of such employer for longer than 4 months, upon the occurrence of:
- The employee’s child being sick; or
- The death of the employee’s spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
2. Working hours
(Note: The provisions related to the regulation of working time, do not apply to senior managerial employees, who are defined as an employee with the authority to hire-, discipline- and dismiss employees and to represent the employer internally and externally; these provisions also do not apply to employees engaged as sales staff who travel to the premises of customers or employees who work less than 24 hours a month for a particular employer and employees who earn more than the threshold set in legislation from time to time: as from 1st March 2023 this is R241 110.59 p.a.).
The prescribed maximum working hours are:
- 45 hours in any week; and-
- 9 hours in any day where a working week of 5 days or less is applicable ;or-
- 8 hours in any day where the employee works on more than 5 days a week.
In respect of meal intervals, an employee who works continuously for more than 5 hours, must be granted a meal interval of at least one continuous hour, or by agreement, not less than 30 min. This provision is dispensed with if the employee works fewer than 6 hours on a day.
In respect of overtime work, this may only occur in accordance with an agreement and may not exceed 10 hours in a week (which may be increased in a collective agreement to 15 hours a week), or 12 hours on any day.
Payment for overtime work must be at least 1,5 times the employee’s normal salary for such overtime worked, or double the employee’s normal salary for Sunday work, unless the employee normally works on a Sunday in which case the payment must be 1, 5 times normal salary.
3. Notice of termination of employment
(Note: the provisions reflected hereunder only apply to employees who work more than 24 hours a month for an employer).
Notice of termination of employment by either party must be in writing except if the employee is illiterate. Notice of termination may not be less than:
- one week during the first 6 months of employment;
- 2 weeks where employment is more than 6 months but less than one year;
- 4 weeks if the employee has been employed for more than one year or is a farm worker or a domestic worker employed for at least 6 months.
The parties to the employment contract may agree to a longer period of notice of termination, subject to this being applicable to both parties.
4. Severance Pay
In the event of termination of the employment contract due to the operational requirements of the employer, a severance payment equal to one week’s remuneration for each completed year of employment with that employer, is applicable. This severance payment may be tax-free on a once off basis provided that an income tax directive is obtained within a prescribed threshold limit as determined from time to time.
With effect from 1 March 2023, the hourly minimum wage rate is R25.42. This equates to:
- R203.36 per day (8 hours) and R228.78 (9 hours);
- R1016.80 per week (40 hour week) and R1143.90 (45 hour week);
- R4405.79 per month (40 hour week) and R4956.52 (45 hour week).
I trust that the above information would be useful for employers.
– The views expressed herein are those of the author and do not necessarily reflect those of Estome Publications. Estome Publications accepts no responsibility for the accuracy, completeness or fairness of the article, nor does the information contained herein constitute advice, legal or otherwise.
– This article originally appeared in georgeherald.com on 05 October 2023
