Basic Conditions of Employment and your Medical Practice
Deon and I recently attended a Basic Labour Relations Workshop which focused on integrating the Basic Conditions of Employment into your company structures. We would like to share with you a few interesting and important issues that we find most commonly affect the medical practitioner in their practice. This article follows on a previous one in the series, written by Elja regarding Policies and Procedures.
- Before discussing the threshold, did you know that any Employee that has been with your Practice for 6 months and longer are considered to be permanently employed and have the protection of the Basic Conditions of Employment Act. The extent of their protection depends on whether they are above or below the earnings threshold.
- The earnings threshold currently in place is R14 333.33 per month (from 1 July 2012 it will increase to R15 250.67 per month) before deductions. This means that employees that earn over the threshold can not seek protection from Chapter 2 of the Basic Conditions of Employment Act when it comes to their ordinary hours of work, the claiming and rates of overtime etc. These employees would need to turn to their employment contracts to seek clarity and protection in this regard.
- As per the BCEA, the overtime rates are 1.5 times their rate for extra hours worked during the week and Saturdays, and 2 times their rate for Sundays and Public holidays worked. They are also not protected when it comes to the entitlement of meal intervals and regulating of working on weekends and public holidays. Because the employee is not protected by the BCEA they do not have the legal right to place demands in respect of the above mentioned but they still have the right to negotiate them into their employment contract. An employee earning under this threshold is fully protected by the BCEA.
Employment Contracts and Job Descriptions
- Remember that even in the process of applying for a position, a potential employee is protected by the BCEA. As an employer one must remember that your conduct at the interview may expose you to legal recourse under labour laws. For example, asking an applicant if she is planning to fall pregnant in the near future may be seen as discrimination even before an agreement to employment has taken place.
- An employment contract protects BOTH the Employer and Employee. In the absence of an employment contract, the BCEA terms and conditions of employment prevail.
If an employee does not have an employment contract, you may set one up at any time through mutual agreement to the terms. An employment contract must contain the following:
- Full name and address of the Employer
- Name and occupation of the Employee
- Place of work
- Starting date of employment
- Hours of work
- Rate of remuneration, overtime rates and frequency of payment
- Benefits and deductions
- Leave entitlements
- Notice periods
- Sick leave is a very sensitive subject and there are very fine lines as to the correct and incorrect granting of sick leave. Section 22 of the BCEA will give you a clear description of sick leave. In terms of section 23 an employer may request a Dr’s note or Medical Certificate as proof of the incapacity to work should the employee be absent for more than two consecutive days.
- Note that taking sick leave is due to incapacity. This means that you need to be physically or mentally incapacitated to work in order to qualify for sick leave. Planned monthly clinic and Doctors visits and monthly medicine collections are not considered to be sick leave under the BCEA, while the employer may grant sick leave for these reasons at their own discretion.
Maternity Leave and “Adoption of a Child” Leave
- The basic terms of Maternity Leave is that an employee is entitled to at least four consecutive months maternity leave for the mother prior to and following the birth of their child. An employee may commence maternity leave at any time from four weeks before the expected date of birth, unless otherwise agreed.
- While the BCEA does not recognise the adoption of a child as maternity leave, The Unemployment Insurance Act recognizes maternity leave following the adoption of a child under the age of 2 years old, allowing employee to claim for the leave.
- “Adoption of a Child” leave may be included in the employment contract through a negotiated agreement.
Annual Leave Rates
- As per Section 21 and Section 35of the BCEA regarding annual leave: “An Employer must pay an Employee leave pay at least equivalent to the remuneration that the Employee would have received for working for a period equal to the period of Annual Leave”
- In the case where an employee typically works overtime or earns commission resulting in a fluctuating remuneration rate, the remuneration amount used to calculate the rate at which they are paid at during their annual leave needs to take the previous 13 weeks remuneration into account.
- It is therefore inconsistent with the BCEA if you pay the employee during annual leave at their basic salary should their remuneration fluctuate.
- Absenteeism contributes heavily to the loss of production in a company. Attendance is the basic duty of the employee and they may be in breach of contract for taking unauthorized time off.
- Absenteeism is not being where you are supposed to be according to your working hours agreement. Turning up late or leaving early, extended lunch and tea breaks and not turning up for work without informing anyone are a few common examples.
- You can be absent from work even if you are on the premises, catching up on Facebook, or engaging in activities which are not work related during working hours.
- Do remember however that the employees lunch time is unpaid, entitling them to attend to any personal maters and even leave the premises during that time.
- It is therefore very important to have a clear Company Attendance Policy in place. An employer should deal with absenteeism in a consistent way with all employees.
- Schedule 8 of the Labour Relations Act shows the Code of Good Practice. This must be followed when dealing with disciplinary actions, grievances and details the steps that may lead to the dismissal of an employee.
- Section 188 of the Labour Relations Act is of great importance in understanding how to follow fair procedure, and that the reason for dismissal is valid.
- We would also suggest contacting the CCMA before taking any action that you may be unsure about. They have proven to be very helpful and are happy to send you the relevant rules and regulations.
Note to Employees
- If you plan to claim for loss of earnings from the Unemployment Insurance Fund (UIF), please remember that you can only claim if you have been dismissed. This may seem obvious, but should you choose to resign voluntarily, you may not claim from the UIF.
Please feel free to contact us if you have queries or require labour advise. We can also assist with Employment Contracts, Job Descriptions, and Procedures and Policies for your practice. Kindly contact us on 012 751 2867 or at firstname.lastname@example.org