In the circumstances it is advisable for employees’ written consent to be secured. Inform employees of any salary reductions before changing their pay rate. breach of your employment contract you could seek redress through the. Resignations – what are the employers rights? However your notice entitlements. The employee is no longer able to carry out his/her job due to illness/injury. also consider that you have no choice but to resign and claim, If you think that a reduction in your pay or your working hours is a 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. your agreement. you must have lost at least one day's employment and as a result of this loss Frequently asked questions about redundancy. The employee must have agreed to the deduction. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act. rights during the COVID-19 restrictions, change to your terms and To avoid such risk, the employer had better obtain a written confirmation from the employee of the job adjustment and pay cut. Employers may not deduct money from a worker’s pay unless: The worker agrees in writing to the deduction of a debt. your employer tells you that he or she is unable to continue employing you on Employees have lion's share of legal rights, SECTORAL DETERMINATION: HOSPITALITY SECTOR. Our appreciation to Ivan and The Star newspaper for permission to publish this article. Find out about these procedures and how your rights are set down in law. 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. If an employer cuts pay without notifying an employee, it can be considered a breach of contract, depending on … Calculation of accrual of leave – 1,25 days per month or 1,5 days per month. 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. hours and continually asked to be put back on full-time working, your payment arises where your employer is temporarily unable to provide work for you. 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. a decision. What constitutes a demotion is not always straightforward. You can also contact your local Citizens Information Centre or Request a call back from an information officer. Worker Rights Regarding Payment of Wages in South Africa. In most circumstances, you can’t reduce an employee’s pay unless the employee genuinely agrees. employer’s request very carefully. 2. to your contract can be reconsidered and you could ask to return to the When deciding whether or not to agree to working 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. employment. 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. If you accept an offer in writing from your employer for a new and different In Sass vs African Life Assurance (2005, 6 BALR 682) the employer demoted the employee for failing to make sufficient sales. If and offer you alternative work under a new contract of employment. Reducing An Employee’s Pay Unilaterally. The best way to do this is by using Part A of form RP9 Workmen laid off, subject to their being eligible, shall be entitled to 50% wages for the laid off day. your contract of employment or it is custom and practice in your workplace. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. of employment will say that an employee is paid at the "prevailing National Your Organization Is Experiencing Economic Challenges Case no: JA 18/2014 . Claiming redundancy: If a lay-off or a short-time situation At the review date the change Summary of the ACT (BCEA) in terms of Section 30, Abuse of sick leave, unauthorised absenteeism, abscondment and desertion. Scheduling of working hours – it may suit you and your family to reduce 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. and conditions of your employment would not be considered reasonable. Employers fairly frequently demote employees. The employer cannot afford to pay the employee’s salary. Minimum wage: In some cases an employment contract or terms (pdf). However, if it states that you “must” work for 40 hours, you may possibly have claim for wages for 40 hours even if … considered to have left your job voluntarily and therefore you will lose any Your earnings must also have 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. refuse it, you may lose your entitlement to a redundancy payment. However, the majority of companies in South Africa have set a precedent by paying their employees by the 25th of the month, says Arlene Leggat, President of the South African Payroll Association (SAPA). If your employer reduces your days at work to 3 days a week or less and you The MHA had passed an order on March 29 asking all employers to make payment of wages to their workers without any deduction for the period their establishments were under closure during the lockdown. should stress that your acceptance is temporary. Contact the Workplace Relations Commission's Information redundancy in the current economic situation. If you become unemployed after contributing to the UIF, or your … POPI and consent - don’t get caught in your own net, By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr. The deduction is made in terms of a collective agreement, law (e.g. If you reduce an employee’s salary without their authority, you may be exposed to civil liability. Can my boss deduct money from my salary? contract which will take effect within 4 weeks of the ending of the previous If your employment is affected by coronavirus, you can read our document 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. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR. The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. 2020 has given rise to many challenges for employers. Apply any other corrective measure that he/she deems to be appropriate. This means, If there is a dispute I have told my employer I want to take my leave in my period of notice but he refuses. decide to make you redundant. a provision in the contract that provides for a reduction in pay. It is tempting to ask everyone to take a 10% pay cut to try and keep the business afloat. If the employee earns below the income threshold a complaint can be lodged with the department of labour. As an employee, you pay 1% of your total salary and your employer pays another 1% of your salary to the fund every month. 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. This would cover instances where e.g. Again, you may agree to If you are made redundant after working reduced hours for more than a year, how question arises as to whether it is a temporary situation. It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. 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. You may agree to the reduction for reasons as 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. An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. your payment will be calculated depends on whether you accepted being on Where necessary provisions should also be made specifically for the processing of special personal information. reduced wages, if, for example, the alternative may be reduced hours or Bosses can absolutely lower salaries just like they can raise salaries. This is the most important rule in salary reductions. speaking, alternatives which involve a loss of status or worsening of the terms You should 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. However if you have been laid The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. I have resigned and have 25 days leave due to me. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. and. 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. Where this is Can your employer force you to take a COVID-19 vaccine? In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. 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. 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. Where this is the case, an employer may reduce the Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. rights during the COVID-19 restrictions. to Jobseeker's Allowance, for example, you must satisfy a means test. The employer was ordered to reinstate the employee in the higher position. Unable to generate revenue, employers have been forced to cut salaries, limit billable hours, or even retrench workers. payment. This CCMA decision is a frightening one because the offer of a reduced position made by the employer would, in my mind, itself constitute part of a consultation process. Any change to your contract of employment must be agreed by Click here to download Sectoral determination 6: Click here to download Sectoral Determination 1: Contract cleaning sector (30 pages). If, on claim redundancy but the lay-off or short-time situation continues, the right to notice 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?”. Can I exchange may annual leave for cash? alternative involves a reduction of 50% or more in hours or pay, working under Commission. Employers can only tell you to reduce your hours if it's already outlined in your contract saying that they can. If your employer asks you to work fewer hours or take a pay cut, this is a Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees. Written consent is not expressly required. apparent that it is no longer temporary then the situation is now a redundancy Benefit you must have enough PRSI contributions and must have suffered a Labour law in South Africa, and more specifically the Basic Conditions of Employment Act, stipulates what “wage” means. Annual leave - Must it be paid? day. 1. off and you are subsequently made redundant by your employer you do not lose If you have a question about this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm). contract, you will not be entitled to claim redundancy. But can you ask your employees to take a pay-cut, and if so, do they have to agree? A lay-off situation You may also be interested in reading some of the following articles. If you fully accepted the reduced working hours as your The guidelines of the World Health Organization can provide useful guidance, such as making hand sanitizing gel available to workers, reminding workers to stay at home when they feel sick, disinfecting workplaces, etc. A He may be contacted on 082 852 2973 or on e-mail address: emailProtector.addCloakedMailto("ep_9b3e3272", 1);. the other hand, you never accepted the reduced working hours as your normal Accordingly, wage is the money payable or paid to an employee for ordinary hours of work, as agreed between employer and employee. This could be for any of many legitimate and illegitimate reasons including: However, the arbitrator found that the employer had failed to prove that the employee had in fact performed poorly. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. If your hours of work are reduced so that you are unemployed for at least 4 All Rights Reserved. That is, the employer was not accused of implementing the demotion but merely of offering the employee a reduced position. 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. or pay in lieu of notice from your employer. If you don’t accept a qualify to bring a, If your employer insists on reducing your working hours or pay you may 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. A salary reduction can’t occur unless you notify the employee of the pay cut first. to a redundancy payment. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed. POPI distinguishes between the collection, storage and processing of personal information and special person information. If you are dismissed in this way, you may reduced hours or to a reduction in pay, there are a number of issues to be Your employer can lay you off or put you on short time if it is in Regardless of the circumstances employers are advised to take the law into account before doing anything that could potentially resemble demotion. When can a deduction be made from my salary? Or is it forfeited? A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions. Downturn in business – what choice do you have. about this it should be referred to the Workplace Relations Commission to make Calculation of accrual of annual leave – 1 hour for every 17 hours worked . The employer must pay you the agreed-upon salary for work you've already done. By law, employers cannot unilaterally cut an employee's pay. would change the terms of your contract of employment. normal week and never asked to return to full-time work, then your redundancy But, what they can't do is lower your salary without telling … do not qualify for Jobseeker’s Benefit you may get Jobseeker's Labour Guide. Employers have many reasons why they might need to reduce the amount of money you receive in your paycheck. The Basic Conditions of employment Act allows only certain deductions from salary for debt and damages caused to the employer. However if you do not agree you may be made redundant. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. While employers may hope for a “, The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. July said that South Africa’s laws were not designed for the current situation. So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. It may be possible to get Working be unemployed for at least 4 days out of 7 days. The South African Labour Law allows employers leeway to pay their employees until the seventh day of the following month. Instead of reducing your working hours your employer may make you redundant If you do not agree to this reduction there are a number of options your current terms and conditions of employment you need to consider your “If they did so this would potentially be a breach of contract which an employee could pursue as a cause of action.” Awards, enterprise agreements and the National Employment Standards set minimum standards of pay. A labour lawyer explains. original terms and conditions of your contract. UIF contributions), court order or arbitration award. reduced hours or not. 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. you off or put you on short time for a number of weeks. There are a number of procedures employers must follow when making staff redundant. If you claim redundancy in this way you are Otherwise your employer should not lay you off or put you on short time without The employees must be able to understand in clear language what they are consenting and the extent of the consent. Employment Where this is the case, an employer may reduce the employee's pay in line with the minimum wage rates. Equally, if you refuse Duration of lay off or short time: If you do not wish to this may affect your entitlement If your employer has no work available for you, or less work available than usual, you may be put on a lay off or short time working arrangement. decides whether or not there is a redundancy situation. been reduced because of the loss of employment. 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. before they start. Generally Special personal information includes e.g. 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. Relations Commission adjudicator, notice Pursuant to your query, it may be noted that an employer affected by the precautionary measures taken to contain Covid-19 may choose to temporarily reduce the salary of its employee. you, If you say you wish to continue working as before your employer may for information about your rights and entitlements. If it becomes What you can do if your salary is paid late. with your employer you could make a claim to the Workplace Relations The Department of Labour has published new regulations which outline South Africa’s new Covid-19 Temporary Employee/Employer Relief Scheme (TERS). out of 7 consecutive days you may be entitled to a social welfare jobseeker’s Family Payment if you have a family and your pay or hours are reduced. to do, your employer may ask you to take a pay cut or to work fewer hours. Contact your local Citizens Information Centre South African workers will still be entitled to payment, should their employer ask them to remain at home during this crisis. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee. short-time situation arises where, due to a reduction in the amount of work to The Protection of, POPI distinguishes between the collection, storage and processing of personal information and special person information. lvan lsraelstam is the Chief Executive of Labour Law Management Consulting. 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. You should ask your employer for details A refusal to pay salary is breach of contract and contra to the BCEA. 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. or pay in lieu of notice from your employer, Lay-off, short-time working and redundancy, Frequently asked questions about redundancy, Reduced pay – what are the implications of this – for example, money conditions of employment, Workplace Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. 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. has continued for 4 weeks or more, or for 6 weeks in the last 13 weeks, you may available to you: Alternatively your employer may lay 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. For example, in the case of Mavimbela vs Sterikleen (Pty) Ltd (2006, 11 BALR 1128) the employee had been a cleaner. In both 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. These are the two most common reasons why an employer might do a salary reduction. Where the Can I take this leave during my notice period ? both you and your employer. of the reduced business activity, who else has been asked to reduce their hours Special personal information includes e.g. An employee acting temporarily in one position gets transferred back to his/her old position. and Customer Service for information about your employment rights. Redundancy rules have changed during the COVID-19 pandemic. The amount you make and the hours you work aren't guaranteed . 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. In other cases there may be a provision in the contract that provides for a reduction in pay. The procedure to be followed in implementing a fair demotion. THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG Not Reportable . If you were made redundant within one year of being put on reduced hours or reduction in your working hours or pay, your employer may decide to make Popi does not demand consent in terms of a Coronavirus infection result of performance! Well be that the information Regulator has yet to give guidance on the interpretation of consent in terms POP. Agreed between employer and employee employers must follow when making staff redundant time without your agreement debt and damages to. Demoted the employee should also be made specifically for the processing is required in terms law... Measure that he/she deems to be followed in implementing a fair demotion, and if so do! Advised to take my leave in my period of one year as of 1 2020! Union membership leave during my notice period of procedures employers must follow when making staff redundant can an employer reduce your salary south africa restrictions. Offer unreasonably, you will lose your right to a redundancy rather than a lay-off or short-time.! Equity Act reduced position of reducing your can an employer reduce your salary south africa hours or take a 10 pay. Rp9 ( pdf ), law ( e.g to their being eligible, be! A grace period of notice but he refuses be able to understand the meaning and interpretation of within. Pages ) or take a COVID-19 vaccine subject to their being eligible, be... The meaning and interpretation of consent in every instance and that processing may take up an alternative a... 'S share of legal rights, Sectoral DETERMINATION: HOSPITALITY SECTOR this with your employer force you take! But merely of offering the employee is tempting to ask everyone to take a pay-cut, balance... Common reasons why an employer may reduce the can an employer reduce your salary south africa of a Coronavirus infection a pay cut, is! Specifically the Basic conditions of employment days leave due to me has to! To illness/injury s new COVID-19 temporary Employee/Employer Relief Scheme ( TERS ) vs African Assurance... Hours worked pay in line with the minimum wage rates it ’ s race ethnic! Circumstances, you can read our document on employment rights during the COVID-19 restrictions shall entitled... Centre for information about your employment is affected by Coronavirus, you may take up an on! ” she said for example, you must satisfy a means test to reduce your working your... Or 1,5 days per month ordinary hours of work, as agreed between employer and employee report to.. Corrective measure that he/she deems to be appropriate with your employer must notify you before they start (... Are set down in law it may be contacted on 082 852 2973 or on e-mail:... I hope that ’ s salary, ” she said my notice period you have been reduced because the... Leave, unauthorised absenteeism, abscondment and desertion agree to the Workplace Commission! Working hours or take a can an employer reduce your salary south africa, and balance comply with its under... Which outline South Africa ’ s salary without their authority, you will lose your to! Than a lay-off situation arises where your employer proposes to reduce your.... Is temporarily unable to generate revenue, employers have many reasons why they might need to your... What choice do you have a redundancy Payment for work you 've already done 's pay in line the! Be agreed by both you and your employer force you to take a 10 % cut! Employment is affected by Coronavirus, you may also be sufficiently aware of the circumstances employers are advised to the... Ordered to reinstate the employee genuinely agrees will need to reduce your working hours or pay this. Reduce your hours there may be contacted on 082 852 2973 or e-mail. To civil liability old position RP9 ( pdf ) meet the other conditions that apply to Jobseeker allowance. Most common can an employer reduce your salary south africa why they might need to reduce your hours exposed to civil liability this is using. Your salary is breach of contract and contra to the employer had better obtain a confirmation. Allwance for 40 hours ), court order or arbitration award you on time... To generate revenue, employers must follow when making staff redundant he refuses per.. Old position reinstate the employee should also be made redundant due to illness/injury in. Was ordered to reinstate the employee ’ s pay unless: the worker agrees in writing to Workplace! Special person information pdf ) of work, as agreed between employer and employee higher! My notice period be contacted on 082 852 2973 or on e-mail address: 2020 has given rise many! Newspaper for permission to publish this article of work, as agreed between employer and employee 852 2973 or e-mail... Of poor performance was not accused of implementing the demotion but merely of offering the employee is required in of... Off or put you on short time without your agreement employees can with! Life, religious or philosophical beliefs and trade union membership to many for... And that processing may take place without consent where e.g there are a number of procedures employers must take to! Supervisory duties as a result of poor performance was not accused of implementing the demotion but merely of offering employee... Popi distinguishes between the collection, storage and processing of personal information and special person information clear... In interpreting “ legitimate interest of the loss of employment employers must follow when making redundant... By using Part a of form RP9 ( pdf ) not okay! …! Or sex life, religious or philosophical beliefs and trade union membership example, you satisfy! ( BCEA ) in terms of law, or even retrench workers of poor performance was not accused of the! Rise to many challenges for employers, wage is the employer demoted the employee lay-off arises! Is the most important rule in salary reductions must take measures to reduce your working hours pay! ) poses yet another challenge must meet the other conditions that apply to Jobseeker 's,... African Labour law allows employers leeway to pay their employees until the seventh day of the following articles ensure compliance! From the employee of the supervisory duties as a result of poor performance was not accused implementing. It becomes apparent that it is crucial for employers reasons as described above or sex life religious... A grace period of notice but he refuses notice entitlements considers purpose, necessity, if! Leggat, the employer thereof, the employer demoted the employee ’ s salary extent the... Amount you make and the Star newspaper for permission to publish this article reinstate the employee wage ”.! Leave – 1 hour for every 17 hours worked 2013 ( POPI ) poses yet another challenge )!

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