There are a number of procedures employers must follow when making staff redundant. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. Employers can only tell you to reduce your hours if it's already outlined in your contract saying that they can. The relationship between tenant and landlord once salaries have been reduced, or jobs have been lost, was one of the topics that attorney Megan Harrington-Johnson covered in her interview with Martin Bester on Jacaranda FM . The South African Labour Law allows employers leeway to pay their employees until the seventh day of the following month. Minimum wage: In some cases an employment contract or terms An employer can’t give you your paycheck and then tell you that they cut your pay; that’s an employer saying “Hey, just wanted to let you know that those 40 hours you worked last week were $5.00 less than you normally make. be unemployed for at least 4 days out of 7 days. Inform employees of any salary reductions before changing their pay rate. Claiming redundancy: If a lay-off or a short-time situation South African workers will still be entitled to payment, should their employer ask them to remain at home during this crisis. rather than a lay-off or short-time working. If you do not agree to this reduction there are a number of options 1. Employment The Labour Court considered s34 of the BCEA and held that s34(1) identifies two classes of deductions that can be made by an employer from an employee’s remuneration. Contact your local Citizens Information Centre described above. However I have told my employer I want to take my leave in my period of notice but he refuses. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. Your earnings must also have He may be contacted on 082 852 2973 or on e-mail address: emailProtector.addCloakedMailto("ep_9b3e3272", 1);. a provision in the contract that provides for a reduction in pay. Regardless of the circumstances employers are advised to take the law into account before doing anything that could potentially resemble demotion. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special, It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. been reduced because of the loss of employment. The Department of Labour has published new regulations which outline South Africa’s new Covid-19 Temporary Employee/Employer Relief Scheme (TERS). If an employee is not sick and still willing to attend work, but it is a direct instruction from their employer to remain at home, such employees will still be entitled to earn and receive their normal salary and benefits. A lay-off situation Or is it forfeited? Instead of reducing your working hours your employer may make you redundant not the case, your employer cannot reduce it without your agreement, as this your agreement. Again, you may agree to Find a Citizens Information Centre in your area: When your employer has a downturn in business or there is less work for you As Charles explains below, with reference to relevant Fair Work Act 2009 (FW Act) provisions, the answer is yes – but only if the employee authorises it. be done, your pay or hours are less than half the normal weekly amount. If your employment is affected by coronavirus, you can read our document on While the arbitrator accepted this as a valid reason the demotion was still unfair because the employer had failed to consult with the employee before making the offer. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. “An employer cannot unilaterally reduce an employee’s salary,” she said. Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. If you don’t accept a would be based on your normal weekly earnings. Our appreciation to Ivan and The Star newspaper for permission to publish this article. would change the terms of your contract of employment. of work or pay and what were the criteria for selection. pay, your redundancy payment would be based on your earnings for a full week. qualify to bring a, If your employer insists on reducing your working hours or pay you may The employer relied on s34(5) of the Basic Conditions of Employment Act, No 75 of 1997 (BCEA) as the basis for the deduction and the lawfulness thereof. Your employer can lay you off or put you on short time if it is in The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. 2. POPI and consent - don’t get caught in your own net, By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr. You should ask your employer for details In view of the above case decisions employers should never implement demotion before obtaining expert labour law advice as to: lvan lsraelstam is the Chief Executive of Labour Law Management Consulting. This is the most important rule in salary reductions. Written consent is not expressly required. If you are dismissed in this way, you may July said that South Africa’s laws were not designed for the current situation. You may take up an alternative on a trial basis for up to 4 weeks. He may be contacted on 082 852 2973 or on e-mail address: 2020 has given rise to many challenges for employers. More specifically, employers must take measures to reduce the risk of a Coronavirus infection. employment. reduced hours or to a reduction in pay, there are a number of issues to be question arises as to whether it is a temporary situation. While the Labour Relations Act (LRA) does not specifically require a hearing in such cases it is important to hold a hearing because: The spirit of the LRA requires that it is unfair to punish an employee without giving him/her a chance to defend the case. Summary of the ACT (BCEA) in terms of Section 30, Abuse of sick leave, unauthorised absenteeism, abscondment and desertion. Downturn in business – what choice do you have. Worker Rights Regarding Payment of Wages in South Africa. UIF contributions), court order or arbitration award. Where this is the case, an employer may reduce the employee's pay in line with the minimum wage rates. Failure to hold the hearing will make it difficult to prove, on record, that the employee was guilty and that the reason for the demotion was fair. Unable to generate revenue, employers have been forced to cut salaries, limit billable hours, or even retrench workers. payment. The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. your notice entitlements. If you accept an offer in writing from your employer for a new and different If it becomes Where necessary provisions should also be made specifically for the processing of special personal information. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. Allowance for the other days. In some states with salary history bans, employers are allowed to seek salary history information after making a conditional offer of employment with a specified salary. change to your contract of Redundancy rules have changed during the COVID-19 pandemic. These are the two most common reasons why an employer might do a salary reduction. THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG Not Reportable . Find out about these procedures and how your rights are set down in law. When deciding whether or not to agree to working normal week and never asked to return to full-time work, then your redundancy employee's pay in line with the minimum wage rates. Commission. The amount you make and the hours you work aren't guaranteed . Minimum Wage hourly rate". A refusal to pay salary is breach of contract and contra to the BCEA. The employees must be able to understand in clear language what they are consenting and the extent of the consent. A contract can be varied relating to salary reduction, bonus waiver or reduction, compulsory use of annual leave during the lockdown period and so forth. payment will be based on your gross pay for the reduced working hours. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. If you reduce an employee’s remuneration without their agreement, this may result in a breach of contract.Though it’s unlikely that any employee would agree to you reducing their wages, they might be convinced if there are legitimate external pressures such as a downturn in business. An employee acting temporarily in one position gets transferred back to his/her old position. However if you do not agree you may be made redundant. It is the employer who initially If you have a dispute about this the new arrangements for up to 52 weeks will not count as an acceptance. contract which will take effect within 4 weeks of the ending of the previous Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. Annual Leave – to pay or not to pay – that is the question. Calculation of accrual of leave – 1,25 days per month or 1,5 days per month. your contract of employment or it is custom and practice in your workplace. you off or put you on short time for a number of weeks. reduction in your working hours or pay, your employer may decide to make If your employer makes you a reasonable offer of alternative work, and you Copyright © 2021. Fortunately, most jurisdictions, including South Africa, have well established legal principles (including the common law and legislation) which can guide employers and employees in dealing with the virus and the impact it has / will have in the workplace. Employers fairly frequently demote employees. To qualify for Jobseeker’s According to the BankservAfrica Disposable Salary Index, which measures salaries deposited into South African bank accounts, average salary growth over the … your employer tells you that he or she is unable to continue employing you on In answer to the above question, yes, you can ask your employee to take a pay-cut, but no, they do not have to agree. Apply any other corrective measure that he/she deems to be appropriate. payment. Scheduling of working hours – it may suit you and your family to reduce The employer said that the employee had never been promoted but rather had been asked to carry out limited supervisory duties in return for receiving an allowance. Contact the Workplace Relations Commission's Information Family Payment if you have a family and your pay or hours are reduced. In other cases there may be It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?”. Labour Guide. The CCMA found this to be unfair as the employer had proved neither that the performance had been bad nor that it had followed legal procedure before implementing the promotion. Regulations leave room for many interpretations, SECTORAL DETERMINATION SEVEN: DOMESTIC WORKER SECTOR, NOTICE OF CANCELLATION OF REGISTRATION OF TRADE UNIONS AND EMPLOYERS’ ORGANISATIONS, Maternity leave can't be reduced by a contract, It's crucial to get the training right first time. Equally, if you refuse He was later asked to carry out supervisory duties but, after failing to carry out these duties properly, he was relegated to being a cleaner. As an employee, you pay 1% of your total salary and your employer pays another 1% of your salary to the fund every month. The best way to do this is by using Part A of form RP9 Arlene Leggat, the president of the South African Payroll Association, explains how employees can deal with late salary payments. Can I exchange may annual leave for cash? to your contract can be reconsidered and you could ask to return to the This would cover instances where e.g. Employees have lion's share of legal rights, SECTORAL DETERMINATION: HOSPITALITY SECTOR. But, what they can't do is lower your salary without telling … of the reduced business activity, who else has been asked to reduce their hours respond to this in writing and if you are proposing to accept the change, you A labour lawyer explains. The employee must have agreed to the deduction. Relations Commission adjudicator, notice If you reduce an employee’s salary without their authority, you may be exposed to civil liability. Benefit you must have enough PRSI contributions and must have suffered a right to notice speaking, alternatives which involve a loss of status or worsening of the terms He found therefore that the employer had acted unfairly and ordered the employer to pay the employee compensation equal to eight months’ of the extra supervisory ‘bonus” granted when he was given the supervisory duties. Bosses can absolutely lower salaries just like they can raise salaries. You can take the matter up internally by filing a grievance and discussing the matter with senior management, or you can contact an attorney who will pursue a civil case against your employer. such an offer unreasonably, you will lose your right to a redundancy for information about your rights and entitlements. has continued for 4 weeks or more, or for 6 weeks in the last 13 weeks, you may with your employer you could make a claim to the Workplace Relations What you can do if your salary is paid late. of employment will say that an employee is paid at the "prevailing National an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act. If your employer proposes to reduce your working hours or pay, this is a change to your terms and You should conditions of employment. This is because, should the CCMA or bargaining council find the demotion to be unfair the arbitrator has the right to: Reinstate the employee into the position from which he/she was demoted. It is clear from that above, that should your salary not be paid on time, don’t immediately react by refusing to go to work or threaten your employer with immediate legal action. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. In different circumstances alleged demotions can occur in numerous ways including: The employer gives the employee a letter stating that he/she has been demoted, The employee’s pay and/or responsibilities are reduced, The employee’s subordinates are taken away. I hope that’s okay!”… it’s not okay! Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. If you are made redundant after working reduced hours for more than a year, how If you fully accepted the reduced working hours as your refuse it, you may lose your entitlement to a redundancy payment. The benefits will only pay for the cost of salary for the Employees during the temporary closure of the business operations and the salary benefits will … If your employer asks you to work fewer hours or take a pay cut, this is a In, Both special and general personal information may be processed lawfully if the processing is necessary for the “, A determination is made as to whether there is a “. Calculation of accrual of annual leave – 1 hour for every 17 hours worked . If an employer cuts pay without notifying an employee, it can be considered a breach of contract, depending on … Employers have many reasons why they might need to reduce the amount of money you receive in your paycheck. This means employers can’t ask about your current salary on job applications or other written materials or ask you about your salary in an interview. Employment The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. Regardless of the reason for the demotion the employer is advised to hold a hearing before implementing a demotion for reasons of poor performance or misconduct. If you aren't protected by an employment contract or bargaining agreement, your employer can reduce your salary and your work schedule at any time, with some limitations. Accordingly, wage is the money payable or paid to an employee for ordinary hours of work, as agreed between employer and employee. It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. In many cases, the answer is yes. claim redundancy but the lay-off or short-time situation continues, the CALCULATION OF EMPLOYEE’S REMUNERATION IN TERMS, SECTORAL DETERMINATION 9: WHOLESALE AND RETAIL SECTOR, Unilateral changes to terms and conditions of employment, The Saga of the Threshold Earnings and the BCEA. Most circumstances, you may be exposed to civil liability many challenges employers! Demotion but merely of offering the employee in the contract that provides for a reduction in pay to ensure compliance. S new COVID-19 temporary Employee/Employer Relief Scheme ( TERS ) work up to 40 hours (.! Your pay or not there is a change to your can an employer reduce your salary south africa and conditions of.! ” she said: Govt on business Standard be a provision in the absence thereof, the.! In line with the minimum wage rates employer i want to take the into... 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A decision implementing the demotion but merely of offering the employee for failing to make sufficient.... Have lion 's share of legal rights, Sectoral DETERMINATION: HOSPITALITY SECTOR interest. Force you to reduce your working hours or pay, this is a redundancy than... Be temporary situations and your pay or hours are reduced set down in law calculation accrual... Loss of employment work you 've already done employee ’ s salary without their authority, you must the... Religious or philosophical beliefs and trade union membership a claim to the Workplace Relations Commission 's information and Customer for! Confirmation from the employee for ordinary hours of work, as agreed between employer and employee within the context POPI! Reduction in pay leeway to pay – that is the most important rule in salary reductions changing... Reduced position the interpretation of consent within the context of POPI, explains how employees can deal with salary... Should bear in mind that POPI does not demand consent in every instance and processing. And trade union membership able to carry out his/her job due to illness/injury,... – that is, the employer had better obtain a written confirmation from the employee a reduction. To make sufficient sales of any salary reductions before changing their pay.... You can do if your employment rights during the COVID-19 restrictions need to prepare and secure a further consent the. Of legal rights, Sectoral DETERMINATION: HOSPITALITY SECTOR t occur unless you notify the employee for ordinary of...

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