We strive to keep our clients informed of developments in employment law and to provide timely and informed advice. As part of our educative role, we have compiled the most commonly asked questions that employees tend to ask of us.
FAQs for employees
In short, yes. You are an employee and you do have rights. While section 29 of the Basic Conditions of Employment Act requires an employer to provide an employee with written particulars of his or her employment, failure to do so does not mean that an employment relationship does not exist. If a person works for another person and receives, or is entitled to receive any remuneration, or if he or she in any manner assists in carrying on or conducting the business of another person then an employment relationship exists. As soon as there is an employment relationship the employee is entitled to all the protections due to employees with written contracts of employment. The Basic Conditions of Employment Act prescribes minimum terms and conditions of employment and these will automatically apply in the absence of a written employment contract. One exception to this general rule is if the person providing the service is an independent contractor.
An employee is entitled to a minimum of four consecutive months maternity leave, which can start at any time from four weeks before the expected date of birth or on a date from which a medical practitioner or midwife certifies that is it necessary for the health of the expectant mother or the unborn child.
An employee must notify her employer at least four weeks before she intends to commence her maternity leave of the date on which she intends to go on maternity leave and the date on which she intends to return to work. No employee may work for six weeks after the birth of her child unless a medical practitioner or midwife certifies that she is fit to do so.
Maternity leave is unpaid leave, unless there is a specific agreement that maternity leave will be paid leave. During the period of unpaid maternity leave, an employee is entitled to draw benefits from the Unemployment Insurance Fund. An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth.
The dismissal of an employee (including refusing to allow an employee to resume work after she has taken maternity leave) on account of her pregnancy, intended pregnancy or any reason related to her pregnancy is automatically unfair and could result in an order of compensation equivalent to 24 month’s salary being made against the employer.
The Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child provides guidelines for employers and employees concerning the protection of the health of women against potential hazards in the work environment during pregnancy, after the birth of a child and while breastfeeding.
A conciliation hearing is essentially a without-prejudice meeting facilitated by a CCMA commissioner with the aim of resolving the dispute between the parties. Anything that is said during conciliation is without prejudice or “off the record” and cannot be used by either party in subsequent litigation. The parties are not entitled to have legal representation at the conciliation unless one of the parties intends to raise a jurisdictional issue (an in-limine point) that may require an attorney to present a legal argument on the issue. If the parties are able to resolve the dispute at conciliation, the commissioner will assist them in formalizing any agreement reached by way of a written settlement agreement.
If the parties are unable to reach a settlement, the commissioner will issue a certificate of outcome stating that the matter remains unresolved and will direct the complainant either to refer the dispute to arbitration in the CCMA or to file a claim with the Labour Court (depending on the nature of the dispute).
If the complainant does not attend the conciliation, the commissioner will dismiss the matter and close the file. If the respondent party fails to attend the conciliation, the commissioner will issue a certificate of outcome and the complainant is entitled to request arbitration or file a claim in the Labour Court.
Attendance at the conciliation is crucial as the parties have an opportunity to attempt to resolve the dispute with the assistance of an independent third party, which could potentially avoid costly litigation.
An arbitration hearing is the opportunity for both parties to present evidence, call witnesses and submit documentation to support their side of the case. After hearing the evidence from both sides, the commissioner will provide the parties with a written decision in the form of an arbitration award. As a general rule, only oral evidence is accepted at an arbitration, which means that all witnesses must be physically present at the arbitration.
If either party does not attend the arbitration, it will proceed in their absence following which the commissioner will make a decision based on the evidence of the party present. Legal representation is not automatically allowed for arbitrations relating to dismissals for misconduct or incapacity (poor performance or ill health) but the parties can agree that they will be legally represented.
Arbitration awards cannot be appealed and the only means of challenging a decision is through review to the Labour Court. A review is limited to the evidence presented at the arbitration and no new evidence can be introduced, which is why it is vital that parties are properly prepared to present the best possible case at arbitration.