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Sitters / Au Pairs in Cape Town, Johannesburg and Pretoria - Sitters4U Babysitting, House sitting and Au Pair services. - What to know about Termination of Employment

What to know about Termination of Employment

The below information does not apply to an employee who works less than 24 hours in a month for an employer.

Notice of termination of employment

A contract of employment may be terminated on notice of not less than

  • one week, if the employee has been employed for six months  or less;
  • two weeks, if the employee has been employed for more than six months but not more than one year;
  • four weeks, if the employee has been employed for one year or more, or if a farm worker or domestic worker has been employed for more than six months.
  • These time periods may be changed by agreement but may not be less than the stipulated times.

A collective agreement may shorten the four weeks notice period to not less than two weeks. Notice must be given in writing except when it is given by an illiterate employee.

The notice on termination of employment by an employer in terms of the Act does not prevent the employee challenging the fairness or lawfulness of the dismissal in terms of the Labour Relations Act, 1995 or any other law.

Severance pay

An employee dismissed for operational requirements or whose contract of employment is terminated in terms of section 38 of the Insolvency Act, 1936 is entitled to one week’s severance pay for every year of service.

Certificate of Service

On termination of employment an employee is entitled to a certificate of service.

 

Variation of Basic Conditions of Employment

A collective agreement concluded by a bargaining council may replace or exclude any basic condition of employment except the following:

  • the duty to arrange working time with regard to the health and safety and family responsibility of employees (S.7,9 and 13);
  • reduce the protection afforded to employees who perform night work(S. 17(3) and (4));
  • reduce annual leave to less than two weeks (S. 20);
  • reduce entitlement to maternity leave (S 25);
  • reduce entitlement to sick leave to the extent permitted (S. 22-24); and
  • prohibition of child and forced labour (S.48).

Collective agreements and individual agreements may only replace or exclude basic conditions of employment to the extent permitted by the Act or a sectoral determination (S.49).

The Minister of Labour may make a determination to vary or exclude a basic condition of employment. This can also be done on application by an employer or employer organisation (S. 50).

A determination may not be granted unless a trade union representing the employees has consented to the variation or has had the opportunity to make representations to the Minister.  A copy of any determination must be displayed by the employer at the work place and must be made available to employee’s (S.50).

Sectoral Determinations

Sectoral determinations may be made to establish basic conditions for employees in a sector and area.

Monitoring , Enforcement and Legal Proceedings

Labour inspectors must advise employees and employers on their rights and obligations in terms of employment laws.  They conduct inspections, investigate complaints and may question persons and inspect, copy and remove records and other relevant documents (S. 64 – 66).

An inspector may serve a compliance order on an employer who is not complying with a provision of the Act.  The employer may object against the order to the Director-General: Labour, who after receiving representations, may confirm, modify or set aside an order.  This decision is subject to appeal to the Labour Court (S. 68 – 73).  

Employees may not be discriminated against for exercising their rights in terms of the Act  (S. 78 – 81).

Who is an Employee?

A person who works for, or provides services to, another person is presumed to be an employee if:

  • his or her manner or hours of work are subject to control or direction;
  • he or she forms part of the employer’s organisation;
  • he or she has worked for the other person for at least 40 hours per month over the previous three months;
  • he or she is economically dependant on the other person;
  • he or she is provided with his or her tools or work equipment; or
  • he or she only works for, or renders service to, one person.

If one of these factors is present, the person is presumed to be an employee until the employer proves that he or she is not.  

General information

It is an offence to:

  • obstruct or attempt to influence improperly a person who is performing a function in terms of the Act;
  • obtain or attempt to obtain any prescribed document by means of fraud, false pretences, or by presenting or submitting a false or forged document;
  • pretend to be a labour inspector or any other person performing a function in terms of the Act;
  • refuse or fail to answer fully any lawful question put by a labour inspector or any other person performing a function in terms of the Act;
  • refuse or fail to comply with any lawful request of, or lawful order by, a labour inspector or any other person performing a function in terms of the Act;
  • hinder or obstruct a labour inspector or any other person performing a function in terms of the Act.(S. 92)

Sources for this Article:

Department of Labour ( Republic of South Africa) 

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