Frequently Asked Questions


A-Z of Frequently Asked Workplace Questions
No.

Question

Type of Issue

Where is the the Answer?

Who can Help?

1.

Absent – without permission

Including Absconding and Desertion

Employer disciplinary code

LRA and CGP: Dismissal

Internal

NBCCI

2.

Abuse – verbal

Following internal grievance procedure is normally appropriate. If abuse is of a sexual nature, it is sexual harassment.

Employer grievance procedure

EEA s6(3)

CGP: sexual harassment.

Internal

CCMA if harassment.

3.

Accommodation – related to employment

Where the employer provides accommodation to the employee.

BCEA s39

Farm workers: Extension of Security of Tenure Act

DOL

Magistrates’ or High Court for eviction orders or Land Claims Court

4.

Affirmative action

Affirmative action measures are intended to ensure that suitably qualified employees from designated groups have equal employment opportunity and are equitably represented in all occupational categories and levels of workforce.

Constitution s9

EEA s12-27

CCMA

EE Commission

5.

AIDS/HIV – testing

May be discrimination. Only allowed in terms of a Labour Court decision.

EEA s7

CCMA

LC

6.

AIDS/HIV – discrimination

Unfair discrimination on the grounds of HIV status is prohibited.

EEA s6

CCMA

LC

7.

Alcohol – drunkenness or abuse in workplace

Normally misconduct, but if employee is an alcoholic it may be incapacity (illness).

Employer disciplinary code

LRA and CGP: Dismissal

Internal

NBCCI

8.

Annual leave

Taking days off from work that have been paid for by the company.

BCEA s20

DOL

9.

Appointment – job applicant not appointed

Job applicants, who believe that they were not appointed due to unfair discrimination, may lodge an unfair discrimination case.

EEA s5-10

CCMA

LC

10.

Assault

An act that threatens violent physical or verbal harm to a person in the workplace.

Employer disciplinary code

LRA and CGP: Dismissal

Internal

NBCCI

11.

Bargaining Councils

Where union and employer parties establish a forum in a particular industry to discuss employee’s conditions of employment and to achieve agreement on procedural and as well as substantive issues and problems.

LRA, in particular ss27-38

 

CCMA

12.

Benefits – unfair conduct of employer

A benefit is something extra to ‘remuneration’. Examples include the use of a company car, medical aid and certain allowances.

LRA Schedule 7 Item 2(1)(b)

Internal

NBCCI

13.

Blue cards

Unemployment insurance

Unemployment Insurance Fund Act

DOL

14.

Bonus

A bonus can be either at the employer’s discretion or could be part of an employment document (e.g. contract or collective agreements). A discretionary bonus cannot be enforced. A contractual bonus may result in a contractual claim.

Contract

Company documentation

Civil claim

NBCCI (when contractual)

15.

Casual employee

(an employee working less than 24 hours a month)

The BCEA no longer provides for "casual workers".

 

Civil claim

16.

Change(s) - to employment relationship without employee’s consent

Unilateral (one sided) changes by an employer to salary, package, targets, benefits or conditions of employment without agreement - or an attempt to reach agreement - can result in a unilateral change to terms and conditions of employment dispute.

LRA s64 (4)

NBCCI

17.

Compassionate leave

It is regarded as part of "Family Responsibility Leave"

BCEA s27

DOL

18.

Commission – changed by employer without consent

If changed unilaterally, a unilateral change to terms and conditions of employment dispute may be declared.

LRA s64 (4)

NBCCI

19.

Commission – non-payment.

If an employee can prove that commission is outstanding and that such commission forms part of his/her remuneration, a claim may be lodged with the DOL.

BCEA s35 (4)

Alternatively, a civil claim can be made.

DOL

or civil claim.

20.

Constructive dismissal

When an employee resigns as a last option, because the employer made an ongoing employment relationship totally unbearable. A constructive dismissal case may be lodged after an employee resigned.

LRA s186 (e)

NBCCI

21.

Contract of employment

(applicable to an employee that works continuously)

It is advisable to have a contract of employment, but this is not a legal requirement. Written particulars of certain conditions of the employment is required. See Written Particulars of Employment.

BCEA s29

Sample contracts for domestics, farm workers and small businesses are available from DOL.

DOL

22.

Contract – ended and not renewed

If a fixed term contract (a contract for a specified period such as 1 May to 31 June 1999) is not renewed, and the employer created a reasonable expectation that it will be renewed, it may be an unfair dismissal.

LRA s186 (b)

NBCCI

23.

Contractor – independent

Independent contractors are generally not covered by labour legislation, including the LRA, the BCEA and Unemployment Insurance Fund Act. Contractors are distinguished from employees, who are covered by legislation.

LRA s213

BCEA s1

Civil Claim

24.

Counseling

Action taken when poor performance is alleged. A measure aimed at the correction of performance is required before dismissal takes place.

Employer code/policy

CGP: Dismissal

Internal

NBCCI

25.

Deductions – unlawful

Deductions from salaries or wages may only be made by agreement in writing.

BCEA s34

DOL

26.

Designated employers and designated groups defined

Designated employers have certain obligations in terms of the EEA, whilst designated groups enjoy protection.

EEA s1

DOL or EE Commission

27.

Demotion – unfair

Unfair Labour Practice (demotion) – the unfair conduct of the employer relating to the demotion due to some alleged offence or transgression at the workplace.

LRA Schedule 7 Item 2 (1)(b)

NBCCI

28.

Disability

No person may be unfairly discriminated against due to some form of disability (e.g. being blind, being in a wheelchair etc.)

EEA

CCMA

LC

29.

Disciplinary action – hearings, sanctions and correct procedure

Unfair disciplinary action can result in an Unfair Labour Practice (discipline) dispute.

Employer disciplinary code

LRA CGP: Dismissal

LRA Schedule 7 Item 2 (1)(c)

Internal

NBCCI

30.

Dismissal – unfair

A dismissal becomes unfair when an employer fails to comply with the stipulated procedural and substantive rules of the Code of Good Practice.

LRA and CGP: Dismissal

NBCCI

31.

Dismissal – no reason given

Unfair dismissal

LRA s191 and CGP: Dismissal

NBCCI

32.

Domestic workers

The BCEA and LRA are applicable. E.g. gardeners are also covered by the legislation.

BCEA

LRA

CCMA or

DOL

33.

Employment Equity Plans

Each employer (who employs more than 50 people) must submit a report in terms of Section 21 of the EEA, which must stipulate the profile of the current workforce. If there are possible barriers in employment policies and procedures, the implementation of remedial steps need to be followed.

EEA Chapter 3

CGP: to be published by the Commission for Employment Equity

 

DOL or EE

Commission

34.

Enforcement – all of the provisions of the BCEA.

Cases that cannot be resolved by negotiation will be referred to the Labour Court.

BCEA

DOL

LC

35.

Family responsibility leave

Compassionate leave, paternity leave and childcare leave are included.

BCEA s27

DOL

36.

Farm workers

BCEA and LRA apply. Payment in kind may be relevant. Working hours are regulated by BCEA.

BCEA
BCEA Schedule 3 Item 5
LRA
BCEA 1983 regulations

CCMA or

DOL

37.

Fraud

The use of false representations to gain an unjust advantage, e.g. cashing fraudulent cheques stolen from the workplace. Employees that are aware of such practices may choose to notify their employer of such wrongdoings and will be protected by the Protected Disclosures Act (whistle blowing procedure).

Employer disciplinary code

CGP: Dismissal

Protected Disclosures Act, no 26 of 2000.

Internal

NBCCI

38.

Freedom of association

The right to join a trade union or employers’ organisation.

LRA Chapter 2

NBCCI or LC

39.

Grievance

Many grievances occur in the workplace. These issues, which mostly deal with interpersonal relationships, should be dealt with internally and are not covered by labour legislation.

Employer grievance procedure

Internal

Neither NBCCI nor DOL.

40.

Health and Safety at work

Employers are required by the legislation to provide a safe and healthy environment for its employees.

Occupational Health and Safety Act

Mine Health and Safety Act

DOL

41.

Increases – annual

Legislation does not make an annual increase compulsory. This is subject to negotiation or agreement. If negotiations result in non-agreement, a matter of mutual interest dispute may be referred to the CCMA.

LRA s134

NBCCI

42.

Injured at work – claims

Persons who get injured at work may claim from the Workmen’s Compensation Fund and not in terms of the BCEA provisions on sick leave.

Compensation for Occupational Injuries and Diseases Act

DOL

43.

Injured at work – dismissal

Unfair dismissal dispute, if dismissal is alleged to be unfair.

CGP: Dismissal

NBCCI

44.

Insubordination

Being disobedient or rebellious to one’s employer or senior colleague.

Employer disciplinary code

CGP: Dismissal

Internal

NBCCI

45.

Job description

The written particulars of employment must include either a job description or a job title.

BCEA s29

Internal

DOL

46.

Late coming/ poor time keeping

This act is subject to disciplinary action. If it becomes continuous it might lead to dismissal.

Employer disciplinary code

CGP: Dismissal

Internal

NBCCI

47.

Leave – refusal to grant

An employee is only entitled to annual leave after being employed for 12 consecutive months with the same employer. Occasional leave may be granted during this time. Leave is granted at the employer’s discretion in the absence of an agreement.

BCEA s20

DOL

48.

Letters of appointment

Certain details of an employment relationship must be given to an employee when employment begins. This would include the terms and conditions of employment

BCEA s29

DOL

49.

Long service bonus

Legislation does not provide for long service bonuses. The Act only provides for severance pay.

Employment documentation.

Some employers do provide long service bonuses.

Internal

50.

Maternity leave – period and payment

An employee is entitled to at least four months’ maternity leave. An employer is not bounded to pay an employee whilst on maternity leave. Contributors to the UIF Fund may institute a claim.

BCEA s25

Unemployment Insurance Fund Act

DOL

51.

Meal breaks

An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour.

BCEA s14

DOL

52.

Medical Aid

Medical aid is not compulsory in terms of the legislation. However, if unfair action is taken with respect to medical aid, it could be an unfair labour practice (benefits)

 

LRA Sch 7 Item 2(1)(b)

NBCCI

53.

Minimum Wages

There is no general minimum wages stipulated in South Africa. However in certain sectors minimum wages are prescribed either by a wage determination or a sectoral determination.

BCEA Chapter 8 and Transitional Arrangement Schedule 3 Item 9-10
Government Gazettes

DOL
NBCCI COLLECTIVE AGREEMENT

54.

Misconduct

Breaking a written or generally known rule in the workplace. May result in disciplinary action or dismissal in serious cases.

Employer disciplinary code

LRA and CGP: Dismissal

Internal

NBCCI

55.

Negligence

A lack of proper care and attention or blatant carelessness at the workplace.

Employer disciplinary code

LRA and CGP: Dismissal

Internal

NBCCI

56.

Night work

Work performed after 18:00 and before 06:00 of the next day.

BCEA s17

DOL

57.

Notice period – time frames and payment

– An employee needs to serve a period of 1-week notice if the employee worked for 4 weeks or less; 2 weeks

– 2 weeks if the employee worked for more than 4 weeks but not more than 1 year

– 4 weeks if the employee works for 1 year or more. Or 4 weeks if the employee was a farm or domestic worker working for more than 4 weeks.

BCEA s37

DOL

58.

Overtime – maximum hours allowed and payment

An employee can agree to work 3-hour overtime a day or 10 hours overtime a week. An employee needs to be paid at least one and one-half times the employee’s wage for overtime worked.

BCEA s10

DOL

NBCCI COLLECTIVE AGREEMENT

59.

Paternity leave

Included in family responsibility leave

BCEA s27

DOL

60.

Payment calculation dismissal

Monies due to the employee in terms of "termination of employment"

BCEA

DOL

61.

Payment calculation notice periods

Monies due to the employee in terms of notice periods.

BCEA s35, 38 and 40

DOL

62.

Payment calculation – leave

Monies due to the employee in terms of leave must be paid according to the rate of remuneration.

BCEA s35 and 40

DOL

63.

Payment calculation – overtime

Monies due to the employee in terms of overtime, at least one and one-half times the employee’s wage.

BCEA s10

DOL

64.

Payment calculation – public holiday work

Monies due to the employee in terms of public holiday work must be paid double the amount that normally gets paid.

BCEA s18

DOL

65.

Payment calculation – Sunday work

Monies due to the employee in terms of Sunday work at a double rate unless the employee ordinarily works on a Sunday, in which case the employer must pay the employee 1½ times the employee’s wage for each hour worked.

BCEA s16

DOL

66.

Payslips

The breakdown of an employee’s remuneration needs to be supplied.

Regulations:

BCEA s33

DOL

67.

Pensions/ Provident Funds

The provisions of pension and/or provident fund benefits to employees are not compulsory. However, some employers do provide employees with a pension/provident fund.

Pensions Act

Financial Services Board (Pensions fund Adjudicator)

68.

Poor performance – dismissal

When the standards of performance are unsatisfactory for an employer.

Employer documentation

LRA and CGP: Dismissal

Internal

NBCCI

69.

Pregnancy – discrimination

Discrimination based on pregnancy or a planned pregnancy is prohibited. Dismissal for being pregnant is automatically unfair.

EEA s6

LRA

 

CCMA

LC

70.

Pregnancy – health and safety

The health and safety of mother and child are protected before and after the birth.

BCEA s26 and s87(1)(b)

CGP: Protection of Employees during Pregnancy and after the Birth of a Child

DOL

71.

Probation

Legislation does not specify a period for probation; however, the employer may determine the period depending on the type of job.

Employment contract

NBCCI or

DOL

72.

Promotion

Where the employee has a reasonable expectation to be promoted and the employer does not (unfair labour practice).

LRA Schedule 7 Item 2(1)(b)

 

NBCCI

73.

Psychometric testing

May be unfair discrimination

EEA s8

CCMA

74.

Public Holiday work

Employees are not expected to work on Public holidays however, if they do, they need to be paid overtime.

BCEA s18

DOL

75.

Resignation – forced

Resignation is the voluntary ending of an employment contract by an employee. Intimidated resignation may be a constructive dismissal dispute.

LRA s186(e)

 

NBCCI if constructive dismissal

76.

Restraint of trade

Contractual agreement that prevents an employee from performing the same job once they leave a company. This could be governed by a stipulated amount of time e.g. 6 months or a year.

Civil dispute – contact an attorney

Magistrates or High Court

77.

Retirement

There is no legislation with regards to a stipulated retirement age. Normally agreed between parties. Forced early retirement result in a constructive dismissal dispute.

See employer’s policy or contracts of employment.

Internal

NBCCI if constructive dismissal.

78.

Retrenchment – fair procedure

The procedures establishes principles and practices which, when retrenching, will lead to the necessary information being furnished, the necessary consultation taking place and to use objective criteria for selection of possible candidates.

LRA S189

CGP: operational requirements

NBCCI

CCMA if s189A

79.

Retrenchment – reasonable alternative offer

If a reasonable offer is made, severance pay does not have to be paid.

BCEA s41(4)

CGP: operational requirements

NBCCI

80.

Sexual harassment

Either discrimination or misconduct. Grievance procedures may be instituted at workplace level. A discrimination case or, in certain instances, a constructive dismissal dispute, may be referred to the CCMA.

CGP: for the handling of sexual harassment cases.

EEA s6(3)

 

Internal

CCMA

LC

81.

Severance pay

Only for retrenchments. Severance pay is not paid for dismissal, resignation or retirement reasons.

BCEA s41

 

NBCCI

DOL

82.

Shift work

An agreement in writing may require or permit an employee to work up to 12 hours in a day.

BCEA, including ss16(5), 17 and 18(5)

DOL

83.

Sick leave

During every sick leave cycle (36 months) an employee is entitled to an amount of paid sick leave equal to the number of days the employees would normally work during a period of 6 weeks. During the first 6 months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

BCEA s22

 

DOL

84.

Skills Development (Learnership Agreement)

Contractual agreement between the learner and the employer.

SDA s19

CCMA

85.

Sunday work

An employer must pay an employee who works on a Sunday at double the employee’s wage for each hour worked, unless the employee ordinarily works on a Sunday, in which the employer must pay the employee at 1½ times the employee’s wage for each hour worked.

BCEA s16

 

DOL

86.

Suspension – unfair

An employee who is suspended from the workplace whilst pending investigation of a disciplinary enquiry and is not paid his salary.

LRA Schedule 7 Item 2 (1)(c)

NBCCI

87.

Strike action

A temporary, collective withholding of labour, its objective being to stop production and thereby to oblige the employer to negotiate the demands of the employees.

LRA Chapter IV.

NBCCI

88.

Tax

These are deductions that take place from an employee’s salary as per government regulation.

 

SA Revenue Services

89.

Temporary employment agencies – also known as labour brokers or personnel agencies

Employees working for these agencies are covered by the LRA, the BCEA and the EEA.

LRA s198

BCEA s82

EEA 57

CCMA or

DOL

90.

Temporary employee

‘Temporary’ could refer to fixed term contracts, employees of employment agencies placed at another place of work or employees working less than 24 hours per month for the same employer.

If the person is an employee and works more than 24 hours per month, the BCEA and LRA applies.

NBCCI or

DOL

91.

Theft

The dishonest action of stealing at the workplace, from the employer, employer’s client or from another colleague.

Employer disciplinary code

LRA and CGP: Dismissal

Internal

NBCCI

92.

UIF (Unemployment Insurance Fund)

A deduction is made by the employer from certain employee’s salaries to benefit them during unemployment.

Unemployment Insurance Fund Act

DOL

93.

Verbal warning

A step taken for less serious misconduct or first offences. The law does not require that verbal warnings must be given before more serious steps are taken.

Employer disciplinary code CGP: Dismissal

Internal

NBCCI

94.

Variation – of BCEA provisions

The provisions of the BCEA can be varied in the following ways: contract of employment, collective agreement, bargaining council agreement, ministerial determination and sectoral determinations.

BCEA

 

DOL

95.

Victimisation

Discrimination e.g. being bullied at the workplace by an employer or supervisor.

EEA s6

CCMA

96.

Wages – deductions or non-payment

The employer is not allowed to deduct money from the employee’s salary without their consent.

BCEA s32 and 34

DOL

97.

Written particulars of employment

The law requires that certain details of the employment relationship should be in writing from the time at which an employee starts work for the employer.

BCEA S29

DOL

98.

Written warnings

A more serious step than verbal warnings aimed at correcting misconduct. A final written warning may be the final step before dismissal. A written warning is not required before dismissal for serious misconduct takes place.

Employer disciplinary code

CGP: Dismissal

Internal

NBCCI

99.

Workers’ rights

All employees are entitled to fair labour practices and rights to associate

Constitution

LRA

BCEA

EEA

NBCCI

DOL

100.

Working hours – hours

– An employer may not require or permit an employee to work more than 45 hours in a week

– 9 hours in any days if the employee works for 5 days or fewer in a week or

– 8 hours in any day if the employee work on more than 5 days in a week.

BCEA s9, also 10-12.

DOL

101.

Working time – arrangement of

The employer party can arrange for additional working time with their employees.

BCEA s7

CGP: Arrangement of Working Time

DOL

 

Keys
NBCCI Information sheet and Dispute Resolution Diagrams available
NBCCI referral forms available
NBCCI Constitution available
NBCCI Collective agreements
Arbitration Awards
Annual Reports
Case Statistics

Meaning of words:
NBCCI: National Bargaining Council for the Chemical Industry  
CCMA: Commission for Conciliation, Mediation and Arbitration DOL: Department of Labour
BCEA: Basic Conditions of Employment Act no. 75 of 1997
CGP: Code of Good Practice
EEA: Employment Equity Act no.
LRA: Labour Relations Act no. 66 of 1995
s Section (of the Act)
ss Sections (of the Act)
CGP: Code of Good Practice
SDA: Skills Development Act
EE Commission: Employment Equity Commission