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Partners in Labour Law

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Partners in Labour Law

Consultant for small businesses, in the HR and Labour Relations areas. Assisting with employee cont

08/07/2021

RETRENCH? SHORT-TIME? LAY-OFFS?

The latest adjustment to Level 4 lockdown has been the ultimate straw that is breaking the back of many small and medium businesses, with restaurants and food outlets being the hardest hit. It has now become essential for many business owners to review their staff and structure to help them get through a difficult period once again. Covid is not going anywhere too soon, and we at Partners in Labour Law can assist business owners and management in reviewing their employee functions, as well as business structure to minimise the financial strain the economy and lockdown is placing on your business.
Over the past few months we have assisted a number of business with retrenchments and restructuring. For the month of July we are offering businesses a reduced rate for consultancy services.

16/03/2021

This is a question that is asked so many times because so many employers have resorted to employing foreign nationals, who are deemed ‘good workers’, ‘loyal’ and ‘skilled’. When things go wrong in the workplace the employer thinks they can dismiss without following the correct procedures because they are a ‘foreign national’, forgetting that they are also in the defines of an employee.

Let’s look at the Labour Relations Act (LRA) definition of an employee – it states, “any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer”. Therefore, if the employer employs a foreign national, pays him/her a salary for work being done, that foreign national is an employee who is covered by the LRA.

Taking this into account, we also must consider the Immigration Act, 13 of 2002. S38(1) of this Act makes it noticeably clear that “no person shall employ - an illegal foreigner; a foreigner whose status does not authorise him or her to be employed by such person; or a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status”. It is therefore the employer’s responsibility to ensure that the candidate is legally permitted to work and can fill the vacancy. The fines for employing illegal foreign nationals are huge, and employers need to avoid prosecution.

Also, important to keep in mind is that foreign nationals who are employed with an employment contract and their work permit expires whilst they are still under contract, are still covered by the Act, and employer will have to follow the correct procedures before terminating their contract. The same will apply for any misconduct, disciplinary procedures will have to be followed according to the law.

So, to conclude this question on foreign nationals being covered by the LRA – yes, they are protected and can also take their grievances to the CCMA.

12/02/2021

Any Labour Law queries or Disputes? We can help.

14/01/2021

Q:
My staff take a day’s sick leave every month to collect medication from government clinics and hospitals. This affects production and causes resentment amongst fellow employees who are at work daily. How does one control this regular sick leave?
A:
Firstly, besides going for a compulsory quarterly check-up (eg. blood pressure, diabetes, cholesterol), employees can nominate someone to collect their medicines on their behalf, so they do not have to take time off every month. During the COVID-19 pandemic some chronic patients are given meds for 3-4 months so that they do not have to enter a medical facility or stand in queues and face the possibility of being infected with the virus. There is little excuse for monthly off-days to attend clinics or hospitals.
Secondly, according to the Basic Conditions of Employment, S23(1) employees are entitled to sick leave when they are unable to work due to an injury or illness. Regular medical check-ups, not related to an immediate medical problem, do not fall under the sick leave category, and therefore annual or unpaid leave should be utilised, or the employee can work back the time over a period.

11/01/2021

Over the next few weeks we will be featuring a Q&A series. These will be related to cases that we have had to address on a regular basis, and issues that most employers have to deal with daily. Questions related to abuse of sick leave, retrenchments and workplace harassment are just a few issues that we will be discussing.

19/03/2020

No one wants to be at work.

When does special leave apply when it comes to Corona? Is it sick leave or is it special leave?

If an employee has recently travelled overseas or been in contact with persons who have travelled, the employer should consider paid special leave, or allow the employee to work from home, if the job allows this. It is important to note that special leave may not come off sick or annual leave. It is over and above any other type of leave.

For any further information on leave related to the Coronavirus, please send me a direct message.

Address

4 Gleneagles Close, Klein Wassenaar, Westlake
Cape Town

Telephone

0832691033

Website

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