Part 3
DOMESTIC SECTORCONTRACT OF EMPLOYMENTEntered into between:
. Address of employer: and
. 1. Commencement This contract will begin on and continue until terminated as set out in clause 4. 2. Place of work . 3. Job description Job Title
. Duties ..
4. Termination of employment (See Guidelines 2 and 3) Either party can terminate this agreement with four weeks written notice. In the case where an employee is illiterate notice may be given by that employee verbally. 5. Wage (See Guidelines 4 and 5)
5.4 The employer shall review the employees salary/wage once a year. 6. Hours of work (See Guideline 6) 6.1 Normal working hours will be from a.m. to . p.m. on Mondays to Fridays and from a.m. to ..p.m. on Saturdays. 6.2 Overtime will only be worked if agreed upon between the parties from time to time. 6.3 The employee will be paid for overtime at the rate of one and a half times his/her total wage as set out in clause 5.3. 7. Meal Intervals (See Guideline 7) The employee agrees to a lunch break of one hour/30 minutes (delete the one that is that not applicable). Lunchtime will be taken from to daily. 8. Sunday work (See Guideline 8) Any work on Sundays will be by agreement between the parties from time to time. If the employee works on a Sunday he/she shall be paid double the wage for each hour worked. 9. Public Holidays (See Guideline 9) The employee will be entitled to all official public holidays on full pay. If an employee does not work on a public holiday, he/she shall receive normal payment for that day. If the employee works on a public holiday he/she shall be paid double. 10. Annual Leave (See Guideline 10) 10.1 The employee is entitled to .. days paid leave after every 12 months of continuous service. Such leave is to be taken at times convenient to the employer and the employer may require the employee to take his/her leave at such times as coincide with that of the employer. 11. Sick leave (See Guideline 11) 11.1 During every sick leave cycle of 36 months the employee will be entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. 11.2 During the first six months of employment the employee will entitled to one days paid sick leave for every 26 days worked. 11.3 The employee is to notify the employer as soon as possible in case of his/her absence from work through illness. 12. Maternity leave (See Guideline 12) (Tick the applicable clauses in the space provided).
13. Family responsibility leave (See Guideline 13) The employee will be entitled
to three days family responsibility leave during each leave cycle. 14. Deductions from remuneration (See Guideline 14) The employer may not deduct any monies from the employees wage unless the employee has agreed to this in writing on each occasion. 15. Accommodation
16. Clothing (Delete this clause if not applicable) sets of uniforms will be supplied to the employee by the employer and will remain the property of the employer. 17. Other conditions of employment or benefits
. 18. General Any changes to this agreement will only be valid if they are in writing and have been agreed and signed by both parties. THUS DONE AND SIGNED AT .. ON THIS DAY OF . 199... . EMPLOYER EMPLOYEE Witnesses: . . GUIDELINESNotice period and termination of employment In terms of the Basic Conditions of Employment Act, any party to an employment contract must give to the other written notice of termination as follows: ·
One
week, if employed for six months or less ·
Four
weeks if employed for more than six months. Procedure for termination of employment Whilst the contract of employment makes provision for termination of employment, it must be understood that the services of an employee may not be terminated unless a valid and fair reason exists and fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure, the employee may approach the CCMA for assistance. Pro-rata leave and severance pay might be payable. In the event of a domestic worker being unable to return to work due to disability, the employer must investigate the nature of the disability and ascertain whether or not it is permanent or temporary. The employer must try to accommodate the employee as far as possible for example, amending or adapting their duties to suit the disability. However, in the event of it not being possible for the employer to adapt the domestic workers duties and/or to find alternatives, then such employer may terminate the services of the domestic worker. The Labour Relations Act, 66 of 1995 sets out the procedures to be followed at the termination of services in the Code of Good Practice, in Schedule 8. Wage/Remuneration/Payment There is no prescribed minimum rate of remuneration. Additional payments (such as for overtime or work on Sundays or Public Holidays) are calculated from the total remuneration as indicated in clause 5.3 of the contract. The total remuneration is the total of the money received by the employee and the payment in kind (i.e. the value of food and accommodation etc.). Payment in kind may not be less than R100. Transport allowances, bonuses, increases These are not regulated by Basic Conditions of Employment Act and are therefore open to negotiation between the parties. Hours of work Normal hours (excluding overtime) A domestic worker may not be made to: ·
work
more than 45 hours a week; ·
work
more than nine hours per day for a five day work week; ·
work
more than eight hours a day for a six day work week; and Overtime A domestic worker may not work more than 10 hours overtime per week and must be paid at least 1.5 times the wage or may agree to receive paid time off. . Daily and weekly rest periods A daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed, must be allowed. The daily rest period may by agreement be reduced to 10 hours for an employee who live on the premises whose meal interval lasts for at least three hours. The weekly rest period may by agreement be extended to 60 consecutive hours every two weeks or be reduced to eight hours in any week if the rest period in the following week is extended equivalently. Meal intervals A domestic worker is entitled to a one-hour break for a meal after not more than five hours work. Such interval may be reduced to 30 minutes, by agreement between the parties. If required or permitted to work during this period, remuneration must be paid. Sunday work Work on Sundays is voluntary and a domestic worker can therefore not be forced to work on a Sunday. If the employee works on a Sunday he/she shall be paid double the daily wage. If the employee ordinarily works on a Sunday he/she shall be paid one and one-half time the wage for every hour worked. Public Holidays The days mentioned in the Public Holidays Act must be granted but the parties can agree to further public holidays. Work on a public holiday is entirely voluntary and a domestic worker may not be forced to work on such public holiday. The official public holidays are: ·
New
Years Day (1 January) ·
Human
Rights Day (21 March) ·
Good
Friday (varies) ·
Family
Day (varies) ·
Freedom
Day (27 April) ·
Workers
Day (1 May) ·
Youth
day (16 June) ·
National
Womans Day (9 August) ·
Heritage
Day (24 September) ·
Day
of Reconciliation (16 December) ·
Christmas
Day (25 December) ·
Day
of Goodwill (26 December) Any other day declared an official public holiday from time to time should also be granted. These days can be exchanged for any other day by agreement. If the employee works on a public holiday he/she shall be paid double the normal days wage. Annual Leave Annual leave may not be less than 21 consecutive days for full-time workers or by agreement, one day for every 17 days worked or one hour for every 17 hours worked. The leave must be granted not later than six months after completion of the period of 12 consecutive months of employment. The leave may not be granted concurrent with any period of sick leave, nor with a period of notice of termination of the contract of employment. Sick leave During every sick leave cycle of 36 months an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. During the first six months of employment, an employee is entitled to one days paid sick leave for every 26 days worked. The employer is not required to pay an employee if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employees absence on account of sickness or injury. Maternity leave The employee is entitled to at least four consecutive months maternity leave. The employer is not obliged to pay the domestic worker for the period for which she is off work due to her pregnancy. However the parties may agree that the domestic worker will receive part of or her entire salary/wage for the time that she is off due to pregnancy. Family responsibility leave Employees employed for longer than four months and for at least four days a week are entitled to take three days paid family responsibility leave during each leave cycle when the employees child is born, or when the employees child is sick or in the event of the death of the employees spouse or life partner or parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. Deduction from the remuneration The Basic Conditions of Employment Act prohibits an employer from deducting any monies from the workers wages without his/her written permission. Other issues There are certain other issues which are not regulated by the Basic Conditions of Employment Act such as probationary periods, right of entry to the employers premises, afternoons off, weekends off and pension schemes, medical aid schemes, training/school fees, funeral benefits and savings account, however the aforementioned may be negotiated between the parties and included in the contract of employment. Prohibition of Employment The Basic Conditions of Employment Act prohibits employment of any person under the age of 15 and it is therefore important for an employer to verify the age of the domestic worker by requesting a copy of the identity document or birth certificate. Other conditions of employment There is no provision, which prevents any other conditions of employment being included in a contract of employment but any provision which sets conditions which are less favourable than those set by the Act, would be invalid. Please note: these guidelines are not meant to be a complete summary of the Basic Conditions of Employment Act and/or legal advice. Should there be any doubt as to rights and/or obligations in terms of the Act or terms of any clause of the suggested Contract of Employment, such queries can be directed to the local office of the Department of Labour, who will gladly assist. DOMESTIC WORKERS:
QUESTIONS AND ANSWERS What proof is necessary if an employee alleges that he/she was discharged without notice and the employer on his/her return alleges that the employee absconded without notice. (None of the parties have any witnesses) Try and mediate - see if an agreement can be reached. We suggest that you recommend that the employee resumes her duties and if they dispute this suggestion, the case will have to be referred to the CCMA. If an employee institutes proceedings for unfair dismissal, the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of the Act. Can I discharge my employee, with immediate effect if he turns up for
work and is drunk? (I warned him previously for the same offence)? No, even if there are very good substantive reasons for a dismissal, an employer must follow a fair procedure before dismissing the employee. This requires the employer to conduct an investigation into the alleged misconduct. This need not be a formal enquiry, but these requirements should be met: ·
The
employer must inform the employee of the allegations in a manner ·
the
employee can understand; ·
The
employee should be allowed reasonable time to prepare a response to the
allegations; ·
The
employee must be given an opportunity to state his/her case; and ·
The
employee has the right to be assisted by a shopsteward or other employee. After the enquiry, the employer should tell the employee of the decision, preferably in writing. If the employer dismisses the employee, the employer must give reasons and inform the employee of any right to refer the dispute for resolution to the CCMA. Employers should keep records of disciplinary action, stating the nature of the misconduct, the disciplinary action, and the reasons for the action. My domestic worker was found in the bedroom so drunk that she passed
out, what could I do? Same as above. If a domestic worker leaves without notice and leaves his/her
belongings on the premises, what can I do? It is not covered by our legislation. When can you dismiss somebody e.g. for negligence must there be a
disciplinary procedure? Yes, a disciplinary procedure must be followed. (See 2 above). If my domestic worker refuses to sign a contract, can I dismiss
him/her? No, you cannot dismiss your domestic if he/she refuses to sign a contract. It is not compulsory to have a contract of employment, but an employer must supply a domestic worker, when the worker commences employment, with the following particulars in writing: ·
The
full name and address of the employer; ·
The
name and occupation of the employee, or a brief description of the ·
work
for which the employee is employed; ·
The
place of work, and, where the employee is required or permitted to work at
various places, an indication of this; ·
The
date on which the employment began; ·
The
employees ordinary hours of work and days of work; ·
The
employees wage or rate and method of calculating wages; ·
The
rate of pay for overtime work; ·
Any
other cash payment that the employee is entitled to; ·
Any
payment in kind that the employee is entitled to and the value of the payment
in kind; ·
How
frequently remuneration will be paid ·
Any
deductions to be made from the employees remuneration ·
The
leave to which the employee is entitled; ·
The
method of notice required to terminate employment, or if employment is for a
specified period, the date when employment is to terminate. Any changes must be revised to reflect the change, and the employee must be supplied with a copy of the document reflecting the change. If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. Written particulars must be
kept by the employer for a period of three years after termination of
employment. My helper has worked 13 years, now lately she is not doing her work
properly and I want to fire her. What steps (i.e. Legal steps) can I take? Incapacity (poor performance or ill health) could be the cause. (investigate the extent of incapacity). Try to get some remedial steps so that the employee can improve her performance). Then follow disciplinary procedure. The domestic worker will still be entitled to notice and pro rata leave pay. Is it fair to dismiss somebody if sick leave is exhausted? No, it would have to be preceded by a fair procedure and the reason-subject to the circumstances would have to be fair, substantive and acceptable. I went home for December holidays, and I was supposed to report back on
the 2nd of January. My child got sick, and I could not make it on
the 2nd, as I had to take my child to hospital. I tried to phone
my employer but in vain. On my arrival at work on the 6th of
January my employer refused me entry, what are my rights? A fair and reasonable hearing must be followed. He/she will still be entitled into notice and pro rata leave pay. Can I dismiss my domestic worker if she stays away longer than her
leave? No, follow disciplinary procedure. He/she will still be entitled to notice and pro rata leave pay. The question of whether dismissal is a fair penalty would have to be considered. Bear in mind that the dismissal is the most severe penalty possible. Is there legislation on minimum wages for domestic workers? No, there is no prescribed minimum wage. We suggest that the average wage paid in that area must be paid. The better the wage the better the productivity. Are domestic workers entitled to pro-rata leave pay and how is it calculated? Yes, domestic workers are entitled to pro-rata leave pay . 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, calculated: ·
At
the employees rate of remuneration immediately before the beginning of the
period of annual leave; and ·
Includes
the value of any payment in kind that forms part of the employees
remuneration unless the employee receives that payment in kind What sick leave am I entitled to? During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. During the first six months of employment an employee is entitled to one days paid sick leave for every 26 days worked. During an employees first sick leave cycle, an employer may reduce the employees entitlement to sick leave by the number of days sick leave taken. Is it compulsory to have a written contract of service with a domestic
worker? See question 6 above. If I am threatened or forced by my employer to sign documents or
perform a "not job related" task, what are my rights? It is an alleged unfair labour practice. Have a discussion with your employer and if you cannot settle the dispute, you can lodge a dispute at the CCMA. Is consultation between an employer and an employee always necessary in
the event of a change in the service contract? Yes, an agreement must be reached between the two parties before a contract can be changed and notice must also be given in writing before the change. The changes cannot be less favorable than the prescribed conditions of employment. My domestic worker did not want to sign a contract with me. She also cannot write or read properly. What must I do in regard to an attendance register? (Take into consideration that I leave home before she starts to work)? Try to find somebody to translate and explain the reason for the contract so that she understands the necessity thereof. (See also 6 above). It is not compulsory for a domestic worker to sign an attendance register as they are excluded from section 30, Informing employees of their rights, section 31, Keeping of records and section 33, Information about remuneration. When should overtime be paid and against what formula? Overtime should be paid when hours of work exceed the maximum daily or weekly maximum hours at an amount calculated at a rate of not less than one and one-half times the hourly wage, (including payment in kind) in respect of the overtime worked. An agreement may provide for an employer to: pay an employee not less than the employees ordinary wage for overtime worked and grant the employee at least 30 minutes` time off on full pay for every hour of overtime worked; or grant an employee at least 90 minutes` paid time off for each hour of overtime worked. An employer must grant paid time off within one month of the employee becoming entitled to it. An agreement in writing may increase the period to 12 months. Are domestic workers covered by the Compensation for Occupational Injuries and Diseases Act? No, the Act is not applicable to domestic workers. When can I regard my domestic worker as having absconded? If the employer has proof that the employee has taken on other employment or that she has left town. Circumstances to be taken into consideration. Effort must be made by the employer to get in touch with the employee or to establish where she/he is. |