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CHAPTER 3 Basic Conditions of Employment
Part A

Application of this Chapter

Section 8: Definitions relating to Basic Conditions of Employment

(1) In this Chapter -

(a) “annual leave cycle” means the period of 12 consecutive month’s employment with the same employer immediately following -

(i) an employee’s commencement of employment; or

(ii) the completion of the last annual leave cycle;

(b)“basic wage” means, for the purpose of calculating any basic condition of employment, that part of an employee’s remuneration in money including the cash equivalent of payment in kind, if any, as calculated in terms of section 10, paid in respect of work done during the hours ordinarily worked but does not include-

(i) allowances, including travel and subsistence, housing, motor vehicle, transport, and professional allowances, whether or not based on the employee’s basic wage;

(ii) pay for overtime, as defined in section 8(g);

(iii) additional pay for work on a Sunday or a public holiday;

(iv) additional pay for night work, as required in terms of section 19(1) or

(v) payments in respect of pension, annuity or medical benefits or insurance;

(c) “continuous shift” means a shift in a continuous operation, as permitted by the Minister in terms of section 15(1);

(d) “incapacity” means an inability to work owing to any sickness or injury;

(e) “monetary remuneration” refers to that part of the remuneration that is paid in money;

(f) “overtime” means time worked in excess of the hours an employee ordinarily works in any ordinary working day but does not include any work done on

(i) a Sunday, if it is not an ordinary working day for that employee; or

(ii) a public holiday,

(g) “security officer” means an employee who

(i) controls, checks and reports on the movements of individuals, vehicles and goods through a checkpoint or at any other place; or;

(ii) protects persons or property;

(h) “sick leave” means any period during which the employee is unable to work due to incapacity;

(i) “sick leave cycle”-

(i) means the period of 36 consecutive months’ employment with the same employer immediately following

(aa) an employee’s commencement of employment; or

(bb) the completion of the last sick leave cycle; and

(ii) includes any period, or combination of periods, not exceeding a total of 36 weeks, during which an employee is on annual leave, sick leave or any other absence from work on the instructions, or with the permission, of the employer.

(j) “spread-over” means the period from the time an employee first starts work in any one 24 hour cycle to the time the employee finally stops work in that cycle;

(k) “urgent work” means -

(i) emergency work which if not attended to immediately, could cause harm to or endanger the life, personal safety or health of any person or could cause serious damage or destruction to property;

(ii) work connected with the arrival, departure, loading, unloading, provisioning, fuelling or maintenance of -

(aa) a ship;

(bb) an aircraft; or

(cc) a truck or other heavy vehicle used to transport passengers, livestock or perishable goods;

(l)“week” in relation to an employee, means a period of 7 days within which the working week of that employee falls; and

(m) “weekly interval” means the interval between the end of one ordinary working week and the start of the next.

(2) for the purposes of paying basic wages, an employer may not pay to an employee an in-kind payment except by agreement between the employer and the employee or in terms of a collective agreement.

(3) The Minister must prescribe the portion of basic wage that may be Paid in kind pursuant to any agreement and the manner of calculation of the cash equivalent value of an in-kind payment.

Section 9: Basic Conditions

(1) Each provision set out in Parts B through to F of this Chapter is a basic condition of employment.

(2) A basic condition of employment constitutes a term of any contract of employment except to the extent that -

(a) any law regulating the employment of individuals provides a term that is more favourable to the employee;

(b) a term of the contract of employment or a provision of a collective agreement is more favourable to the employee; or

(c) the basic condition of employment has been altered as a result of an exemption or an variation granted in terms of section 139.

(3) Subject to section 2(3) to (5), if there is a conflict between the provisions of this Chapter, and the provisions of any other law, the law that provides the more favourable terms and conditions for the employee prevails to the extent of the conflict.

Part B

Remuneration

Section 10: Calculation of remuneration and basic wages

(1) This section applies when, for any purpose of this Act, it is necessary to determine the applicable hourly, daily, weekly or monthly rate of pay of an employee -

(a) whose remuneration is based on a different time interval; or

(b) who is remunerated on a basis other than time worked.

(2) If an employee is remunerated on a basis other than time worked, that employee must be considered, for the purpose of this section, to be remunerated on a weekly basis, and that employee’s weekly remuneration or weekly basic wage must be calculated as follows:

(a) calculate the total the amount of remuneration or basic wage earned by the employee during

(i) the immediately preceding 13 weeks of work; or

(ii) if the employee has been in employment for a shorter period, that shorter period of work; and

(b) divide that total by the number of weeks the employee worked to determine the employee’s average weekly remuneration or basic wage.

(3) To determine the basic comparable hourly, daily, weekly or monthly remuneration or wage of an employee who is paid on an hourly, daily, weekly, fortnightly or monthly basis -

(a) in the first column of Table 1 below, locate the line for that employee’s applicable pay period;

(b) read across on that line to the column for the desired comparable rate of remuneration or basic wage, as indicated in the first line of the table; and

(c) apply the formula set out in the cell of the table thus located.

Table 1 - Calculation of remuneration and basic wages

To calculate hourly rates

To calculate daily rates

To calculate weekly rates

To calculate monthly rates

Employees whose remuneration is set by the hour

Multiply the hourly rate by the number of ordinary hours of work each day.

Multiply the hourly rate by the number of ordinary hours of work each week.

Calculate the weekly rate, then multiply the calculated weekly rate by 4,333.

Employees whose remuneration is set by the day

Divide the daily rate by the number of ordinary hours of work each day.

Multiply the hourly rate by the number of ordinary hour of work each week.

Calculate the weekly rate, then multiply the calculated weekly rate by 4,333.

Employees whose remuneration is set by the week

Divide the weekly rate (or calculated weekly rate) by the number of ordinary hours of work each week

Divide the weekly rate (or calculated weekly rate) by the number of ordinary days of work each week.

Calculate the weekly rate, then multiply the calculated weekly rate by 4,333.

Employees whose remuneration is set by the fortnight

Divide the fortnightly rate by two times the number or ordinary hours of work each week

Divide the fortnightly rate by two times the number of ordinary days of work each week.

Divide the fortnightly rate by two

Calculate the weekly rate, then multiply the calculated weekly rate by 4,333.

Employees whose remuneration is set by the month

Divide the monthly rate by 4.333 times the number of hours ordinary worked each week

Divide the monthly rate by 4,333 times the number of days ordinary worked each week

Divide the monthly rate by 4,333.

(4) For the purposes of Table 1 in subsection (3) -

(a) “ordinary hours” -

(i) must not exceed the maximum number of ordinary hours referred to in section 16;

(ii) do not include overtime.

(b) “ordinary days” means -

(i) five days, if the employee works a five day week;

(ii) six days, if the employee works a six day week; or

(iii) the number of agreed days, if the employee works less than five days a week.

Section 11: Payment of remuneration

(1) An employer must pay to an employee any monetary remuneration to which the employee is entitled -

(a) not later than one hour after completion of the ordinary hours of work on the normal pay day, which may be daily, weekly, fortnightly or monthly;

(b) in cash, or at the employee’s option, by cheque and the payment must be either-

(i) to the employee; or

(ii) by direct deposit into an account designated in writing by that employee; and

(c) in a sealed envelope, if payment is in cash or by cheque.

(2) In case of an employee whose contract of employment is terminated before the pay day, the employer must, on the day on which the contract is terminated, pay to the employee the remuneration to which the employee is entitled in the manner set out in subsection(1)(b) and (c)

(3) Each payment contemplated in subsections (1) and (2)-

(a) must be supported by a written statement of particulars in the prescribed form, which-

(i) must accompany the payment, if the payment is in cash or by cheque; or

(ii) must be sealed envelope given to the employee, if payment is by direct deposit;

(b) must not be made at a shop, bottle store or other place where intoxicating liquor is sold or stored or any place of amusement in that shop, bottle store or place, unless the employee is employed in that shop, bottle store or place.

(4) If any part of an employee’s remuneration is paid in kind, then it must be made in the manner set out in subsection (1)(a),unless the employee requests otherwise.

Section 12: Deductions and other acts concerning remuneration

(1) An employer must not make any deduction from an employee’s remuneration unless-

(a) the deduction is required or permitted in terms of a court order, or any law; or

(b) subject to subsection (2), the deduction is -

(i) required or permitted under any collective agreement or in terms of any arbitration award; or

(ii) agreed in writing and concerns a payment contemplated in subsection (3).

(2) The deductions made in terms of subsection (1)(b) must not in aggregate exceed one third of the employee’s remuneration.

(3) A deduction referred to in subsection (l)(b)(ii) may be made only in respect of the payment of-

(a) rent in respect of accommodation supplied by the employer;

(b) goods sold by the employer;

(c) a loan advanced by the employer;

(d) contributions to employee benefit funds; or

(e) subscriptions or levies to a registered trade union.

(4) An employer who deducts an amount from an employee’s remuneration in terms of subsection (1) for payment to another person must pay the amount to that person in accordance with the time period and other requirements specified in the law, court order, arbitration award or agreement.

(5) An employer must not -

(a) levy a fine on an employee unless it is authorised by statute or a collective agreement;

(b) require an employee to

(i) buy goods from a shop owned by the employer or run on its behalf;

(ii) use the services rendered by the employer for reward;

(iii) pay for any goods supplied by the employer at a price exceeding an amount equal to the price paid by the employer for the goods plus any reasonable costs incurred by the employer in acquiring the goods;

(c) require or permit an employee to -

(i) repay any remuneration duly paid to an employee; or

(ii) acknowledge receipt of an amount greater than the remuneration actually received;

(6)Subject to any provision in a contract of employment or collective agreement to the contrary, an employer may, by written notice to the employee -

(a) reduce an employee’s agreed number of ordinary hours of work for a period of no longer than three months for operational reasons or other reasons recognised by law; and

(b) correspondingly reduce that employee’s remuneration, but by no more than one half of that employee’s basic wage.

(7) The reduction of ordinary hours of work may be extended for additional periods not exceeding three months by written agreement between the employer and the employee or the employee’s registered trade union, in the case of an exclusive barging agent.

Section 13: Wage order

(1) After considering a report and recommendations of the Wages Commission, the Minister may make a wage order determining remuneration and other conditions of employment for employees in any industry and area -

(a) in accordance with the recommendations, or with modifications;

(b) by notice in the Gazette; and

(c) with effect from a date specified in that Gazette.

(2) A wage order is binding on all employers and employees described in the notice.

(3) A wage order remains binding until it is -

(a) suspended or cancelled by the Minister in accordance with subsection (4);

(b) amended or superseded by a new or amended wage order; or

(c) superseded by a collective agreement that provides for terms that are better than those contained in the wage order.

(4) The Minister, after consulting the parties bound by a wage order, may suspend or cancel all or part of that order by publishing a notice in the Gazette, setting out -

(a) the provisions affected by the suspension or cancellation;

(b) the industry and areas affected by the suspension or cancellation; and

(c) the period of the suspension, or date the cancellation takes effect.

(5) In addition to publication of any information in the Gazette as contemplated in this section, the Minister must, where appropriate, publish the information through other available means, with a view to ensuring that the intended recipients of the information receive the information.

Section 14: Exemptions from a wage order

(1) Any person may apply to the Minister in the prescribed manner and form for an exemption from the provisions of a wage order.

(2) The Minister may exempt any person or category of persons from any provision of a wage order if the Minister is satisfied that-

(a) the terms and conditions of employment of the employees affected by the exemption are not less substantially less favourable than those contained in the wage order; or

(b) special circumstances exist that justify the exemption in the interests of the affected employees.

(3) An exemption granted in terms of subsection (2) -

(a) must be set out in the prescribed form, which must -

(i) state the period of the exemption as determined by the Minister; and

(ii) be signed by the Minister;

(b) may commence on -

(i) the date it is signed, or a later date; or

(ii) a date before the date it is signed, but not earlier than the date of the application for exemption; and

(c) may include any conditions under which the exemption is granted.

(4) The Permanent Secretary must-

(a) forward the exemption to any person exempted and the employees affected by the exemption; and

(b) furnish a copy of the exemption to any person on the payment of the prescribed fee.

(5) The Minister may, in writing, amend or withdraw an exemption.

Part C

Hours of Work

Section 15: Declaration of continuous shifts

(1) The Minister may, by notice in the Gazette, declare any operation to be a continuous operation and to permit the working of continuous shifts in respect of those operations.

(2) In a notice referred to in subsection (1), the Minister may prescribe any condition in respect of the shift, provided that no one shift may be longer than eight hours.

(3) In addition to publication of any information in the Gazette as contemplated in this section, the Minister must, where appropriate, publish the information through other available means, with a view to ensuring that the intended recipients of the information receive the information.

Section 16: Ordinary hours of work

(1) Subject to any provision of this Chapter to the contrary, an employer must not require or permit an employee, other than an employee contemplated in subsection (3), to work more than -

(a) 45 hours in any week, and in any case, not more than-

(i) nine hours on any day, if the employee works for five days or fewer in a week; or

(ii) eight hours on any day, if the employee works for more than five days in a week; or

(b) if the employee works in a continuous operation, the maximum number of hours prescribed by the Minister in terms of section 15(2) for that employee’s continuous shift.

(2) The ordinary hours of work of an employee described in subsection (1) whose duties include serving members of the public may be extended up to 15 minutes in a day, but not more than a total of 60 minutes in a week, to enable that employee to continue performing those duties after the completion of ordinary hours of work.

(3) Subject to any provision of this Chapter to the contrary, an employer must not require or permit a security officer, an employee working in emergency healthcare services or an employee of a class designated by the Minister in terms of subsection (5) to work more than -

(a) 60 hours in any week, and in any case, not more than-

(i) 12 hours on any day, if the employee works for five days or fewer in a week; or

(ii) 10 hours on any day, if the employee works for more than five days a week; or

(b) if the employee works in a continuous operation, the maximum number of hours prescribed by the Minister in terms of section 15(2) for that employee’s continuous shift.

(4) In determining the time worked during the week by an employee for the purpose of this section, any meal interval referred to in section 18-

(a) of an employee subject to subsection (3) must be regarded as time worked;

(b) of any other employee must be disregarded.

(5) The Minister may designate a class of employees for the purpose of Subsection (3) by notice in the Gazette if satisfied that the affected employees or their registered trade unions have been consulted.

Section 17: Overtime

(1) Subject to any provision of this Chapter to the contrary, an employer must not require or permit an employee to work overtime except in accordance with an agreement, but, such an agreement must not require an employee to work more than 10 hours overtime a week, and in any case, not more than 3 hours’ overtime a day.

(2) An employer must pay an employee for each hour overtime worked at a rate at least one and one-half times the employee’s hourly basic wage but, when an employee who ordinarily works on a Sunday or public holiday, works overtime on that Sunday or public holiday, the employer must pay that employee at a rate of at least double the employee’s hourly basic wage.

(3) An employer may apply in writing to the Permanent Secretary to increase the Limits on overtime work referred to in subsection (1) if the employees affected by the application agree.

(4) If the Permanent Secretary grants the application, the Permanent Secretary must issue a notice stipulating-

(a) the class of employees to whom the notice applies;

(b) the new limits on overtime work;

(c) any conditions concerning the working of that overtime; and

(d) its period of application.

And may amend or withdraw the notice at any time.

(5) This section, except subsection (2), does not apply to an employee who is performing urgent work.

Section 18: Meal intervals

(1) An employer must give an employee who works continuously for more than 5 hours a meal interval of at least one hour.

(2) An employer may shorten the meal interval to not less than 30 minutes if

(a) the employee agrees; and

(b) the employer has given written notice to the Permanent Secretary of that agreement.

(3) An employer must not require or permit an employee to work during a meal interval.

(4) For the purposes of this section -

(a) work is continuous unless it is interrupted by an interval that is more than 60 minutes, or such shorter period as agreed in terms of subsection (2);

(b) a driver of a motor vehicle who does no work other than remaining in charge of the vehicle or its load during a meal interval is deemed not to be working during the interval; and

(c) an employee must be remunerated for any portion of a meal interval that is longer than 90 minutes.

(5) This section does not apply to -

(a) an employee who is engaged in urgent work;

(b) a security officer; or

(c) an employee who works on a continuous shift.

Section 19: Night work

(1) An employee is entitled to an additional payment of six percent of that employee’s hourly basic wage, excluding overtime, for each hour of work, performed by that employee, between the hours of 20h00 and 07h00.

(2) An employer must not require or permit an employee, whom the employer knows, or reasonably ought to know, is pregnant, to perform any work, including overtime work, between the hours of 20h00 and 07h00, during the period -

(a) eight weeks before her expected date of confinement; or

(b) eight weeks after her confinement.

(3) The periods referred to in subsection (2) may be extended if a medical practitioner certifies that it is necessary for the health of the employee or her child.

Section 20: Daily spread-over and weekly rest period

(1) No employer may require or permit an employee, other than an employee who is performing urgent work, to work a spread-over of more than 12 hours.

(2) An employer must not require or permit an employee, other than an employee who is performing urgent work, to work without a weekly interval of at least 36 consecutive hours of rest.

Section 21: Work on Sundays

(1) An employer must not require or permit an employee to perform work on a Sunday, except as provided in this section.

(2) Subsection (1) does not apply to an employer who employs an employee for the purposes of -

(a) urgent work;

(b) carrying on the business of a shop, hotel, boarding house or hostel that lawfully operates on a or Sunday;

(c) performing domestic service in a private household;

(d) health and social welfare care and residential facilities, including hospitals, hospices, orphanages and old age homes;

(e) work on a farm required to be done on that day;

(f) work in which continuous shifts are worked; or

(g) any activity approved by the Permanent Secretary in terms of subsection (4).

(3) An employer may apply in writing to the Permanent Secretary to approve work on Sundays if the employees affected by the application agree.

(4) In the Permanent Secretary grants the application, the Permanent Secretary must issue a notice in writing stipulating -

(a) the nature of the work to which the notice applies; and

(b) any conditions that may apply.

(5) Subject to subsection (6), an employer must pay an employee who works on Sunday double that employee’s hourly basic wage for each hour worked

(6) Despite subsection (5), an employer may pay an employee who works on Sunday one and one half of that employee’s hourly basic wage for each hour worked if -

(a) the employer grants the employee an equal period of time away from work during the next working week; and

(b) that employee agrees.

(7) In a case an employee who ordinarily works on Sunday, the employer must pay the employee’s daily remuneration plus the hourly basic wage for each hour worked.

(8) For the purpose of this section, if the majority of the hours worked on a shift that extends into or begins on a Sunday falls on –

(a) the Sunday, all the hours on that shift are deemed to have been worked on Sunday, or

(b) the Saturday or Monday, all the hours on that shifts are deemed to have been worked on Saturday or Monday.

Section 22: Public Holidays

(1) An employer must not require or permit an employee to perform any work on a public holiday, except as provided in this section.

(2) Subsection (1) does not apply to an employer who employs an employee for the purposes of -

(a) urgent work;

(b) carrying on the business of a shop, hotel, boarding house or hostel that lawfully operates on a public holiday;

(c) performing domestic service in a private household;

(d) health and social welfare care and residential facilities, including hospitals, hospices, orphanages and old age homes;

(e) work on a farm required to be done on that day;

(f) work in which continuous shifts are worked; or

(g) any activity approved by the Permanent Secretary in terms of subsection (4).

(3) An employer may apply in writing to the Permanent Secretary to approve work on a public holiday if the employees affected by the application agree.

(4) In the Permanent secretary grants the application, the Permanent Secretary must issue a notice in writing stipulating -

(a) the nature of the work to which the notice applies; and

(b) any conditions that may apply.

(5) If a public holiday falls on a day on which an employee would ordinarily work, the employer must either -

(a) pay

(i) an employee who does not work on the public holiday, no less than that employee’s basic daily wage subject to subsection (6); or

(ii) an employee who works on the public holiday, that employee’s normal daily remuneration plus that employee’s hourly basic wage for each hour worked; or

(b) if the employee referred to in paragraph (a)(ii) requests and the employer agrees -

(i) Pay an employee who works on the public holiday that employee’s normal daily remuneration plus one half of that employee’s hourly basic wage for each hour worked; and

(ii) grant that employee an equal period of time from work during the next working week.

(6) If an employee who does not work on a public holiday fails, without a valid reason, to work on either the day immediately before, or the day immediately following, that public holiday, the employer is not required to pay that employee the amount otherwise required in terms of subsection (5)(a)(i).

(7) If an employee works on a public holiday that falls on a day other than the employee’s ordinary work day, the employer must pay the double that employee’s hourly basic wage for each hour worked.

(8) For the purpose of subsections (1) to (7), if the majority of the hours worked on a shift, that extends into or begins on a public holiday, falls on-

(a) the public holiday, all the hours on that shift are deemed to have been worked on the public holiday; or

(b) the other day, all the hours on that shift are deemed to be worked on that day.

Part D

Leave

Section 23: Annual leave

(1) For the purpose of this section “ordinary work week” means the number of days per week ordinarily worked by an employee.

(2) Every employee is entitled to at least four consecutive weeks’ annual leave with full remuneration in respect of each annual leave cycle, calculated as follows:

Number of days in ordinary work week

Annual leave entitlement in working days

6

24

5

20

4

16

3

12

2

8

1

4

(3) If an employee does not ordinarily work a fixed number of days per week, the employee is entitled to annual leave calculated on the basis of the average number of days worked per week over the 12 months prior to the commencement of a new annual leave cycle, multiplied by four.

(4) The number if leave days referred to in subsection (2) may be reduced by the number of days during the annual leave cycle which, on request by the employee, the employer granted that employee as occasional leave on full remuneration.

(5) An employer may determine when the annual leave is to be taken provided that it is no later than-

(a) four months after the end of the annual leave cycle; or

(b) six months after the end of the annual leave cycle if, before the end of the four months period contemplated in paragraph (a), the employee agreed in writing to such an extension.

(6) An employer must pay remuneration due to an employee in respect of annual leave-

(a) according to that employee’s regular pay schedule, if the employee is paid by direct deposit as contemplated in section 11 (1)(b)(ii), or

(b) in any other case, not later than-

(i) the last working day before the commencement of annual leave; or

(ii) not later than the first pay day after the end of the leave period, if the employee requests such an extension in writing.

(7) An employee must not require or permit an employee to take annual leave during any other period of leave to which the employee is entitled in terms of this Part.

(8) An employer must grant an employee an additional day of paid leave if a public holiday falls on a day-

(a) during an employee’s annual leave; and

(b) on which the employee would ordinarily have worked.

(9) An employer must not require or permit an employee to work for the employer during any period of annual leave.

(10) Except on termination of employment, an employer must not pay an employee an amount of money in substitution for the annual leave to which that employee is entitled, whether or not the employee requests or agrees in writing to such a payment.

Section 24: Sick leave

(1) During any sick leave cycle, an employee is entitled to sick leave as follows:

(a) not less than 30 working days, if the employee ordinarily works five days during a week

(b) not less than 36 working days, if the employee ordinarily works six days during the week; and

(c) not less than the number of working days calculated on pro rata basis, if the employee ordinarily works fewer than five days during a week,

but, an employee is entitled to one day’s sick leave for every 26 days worked during the employee’s first year of employment

(2) for the purpose subsection (1)(b), the sick leave days to which an employee who does not ordinarily work a fixed number of days per week is entitled to, must be calculated annually on the bases of the average number of days worked per week over the previous 12 months

(3) Subject to Subsection (4) on the employee’s normal pay day, the employer must pay that employee an amount equal to that employee’s daily remuneration for each day of absence on sick leave.

(4) Despite subsection (3), an employer is not required to pay an employee for sick leave in any of the following circumstances:

(a) if the employee -

(i) has been absent from work for more than two consecutive days; and

(ii) fails to produce a medical certificate by a medical practitioner or any other evidence of proof of illness as may be prescribed;

(b) to the extent that the employee is entitled to payment in terms of the Employees’ Compensation Act, 1941 (Act 30 of 1941), if the employee is absent from work during any period of incapacity arising from an accident or a scheduled disease;

(c) to the extent that the employee is entitled to payment in respect of that sick leave from a fund or organisation -

(i) designated by the employee, and in respect of which the employer makes contributions at least equal to that made by the employee; and

(ii) that guarantees the payment of sick leave; or

(d) to the extent that the employee is entitled to payment in respect of that sick leave under any other legislation.

(5) Sick leave-

(a) does not form part of annual leave, compassionate or maternity leave;

(b) does not entitle the employee to any additional remuneration on termination of employment; and

(c) if not used during the period referred to in subsection (1), lapses at the end of that period.

Section 25: Compassionate leave

(1) An Employee is, during each period of 12 months of continuous employment, entitled to five working days’ compassionate leave with fully paid remuneration.

(2) An Employee is entitled to compassionate leave if there is a death or serious illness in the family.

(3) The Minister must prescribe the form and manner in which compassionate leave may be applied for by an employee and any other information that maybe required to support the application.

(4) Compassionate leave-

(a) does not form part of annual, sick or maternity leave;

(b) Does not entitle the employee to any additional remuneration on termination of employment; and

(c) if not used during the period referred to in subsection (1), lapses at the end of that period.

(5) For the purpose of this section “family” means a-

(a) child, including a child adopted in terms of any law, custom or tradition;

(b) spouse;

(c) parent, grandparent, brother or sister of the employee; or

(d) father-in-law or mother-in-law of the employee

Section 26: Maternity leave

(1) Subject to subsection (3), a female employee who has completed six months continuous service in the employment of an employer is, with a view to her confinement, entitled to not less than 12 week’s maternity leave, calculated as follows”

(a) before her actual date of confinement, -

(i) she is entitled to commence maternity leave four weeks before her expected date of confinement, as certified by her medical practitioner; and

(ii) she is entitled to maternity leave for the entire time from the commencement of her maternity leave as contemplated in paragraph (i), until her actual date of confinement.

(b) after her date of confinement, she is entitled to -

(i) eight weeks maternity leave in every case; and

(ii) in the case of an employee whose date of confinement occurred less than four weeks after the commencement of her maternity leave, the amount of additional time required to bring her total maternity leave to 12 weeks.

(2) The employee must provide the employer with a certificate signed by a medical practitioner confirming -

(a) the expected date of confinement before taking maternity leave; and

(b) the actual date of confinement on her return from leave.

(3) During any period of maternity leave, the provisions of the contract of employment remain in force, and the employer must, during the period of maternity leave, pay to the employee the remuneration payable to that employee except the basic wage.

(4) The Social Security Commission established by the Social Security Act, 1994 (Act No. 34 of 1994) must, during the period that an employee is on maternity leave, pay to that employee such portion of that employee’s basic wage as may be prescribed in terms of that Act.

(5) An employer must not dismiss an employee during her maternity leave or at the expiry of that leave on -

(a) any grounds contemplated in section 34; or

(b) any grounds arising from her pregnancy, delivery, or her resulting family status or responsibility.

(6) Subsection (5) does not apply if -

(a) the employer has offered the employee comparable alternative employment; and

(b) she has unreasonably refused to accept that offer.

Section 27: Extended maternity leave

(1) If a medical practitioner certifies that -

(a) due to complications arising from pregnancy or delivery, it is necessary for the health of an employee, an employer must grant that employee extended maternity leave in excess of the periods referred to in section 26 (1)(a) or (b), up to a maximum equal to the greater of-

(i) one month; or

(ii) the amount of accrued sick leave that the employee has at that time; or

(b) due to complications arising from birth or congenital conditions, it is necessary for the health of the employee’s child, an employer must grant that employee extended maternity leave in excess of the periods referred to in section 26 (l)(b), up to a maximum equal to the greater of -

(i) one month; or

(ii) the amount of accrued sick leave that the employee has at that time.

(2) If a medical practitioner issues a certificate in terms of both subsection (1) (a) and (b), the periods of extended maternity leave must run concurrently.

(3) A period of extended maternity leave must run immediately before or immediately following an employee’s maternity leave in terms of section 26.

(4) Section 26 (3) to (6) apply in respect of an employee who takes extended maternity leave under this section

Part E

Accommodation

Section 28: Provision of accommodation

(1) For, the purposes of this section, a “dependant” means the spouse and the dependant children of the employee or of the spouse..

(2) If an employee is required to live at the place of employment or to reside on any premises owned or leased by the employer, that employer must provide the employee with adequate housing including sanitary and water facilities.

(3) If an employee contemplated in subsection (2) lives on agricultural land, the employer must provide sufficient facilities referred to in that subsection to meet the reasonable needs of the employee and the employee’s dependants, and must either -

(a) permit the employee to keep livestock and to cultivate land to meet the reasonable needs of that employee and that employee’s dependants; or

(b) in terms of an agreement with the employee -

(i) provide the employee with sufficient food to meet the reasonable needs of the employee and the employee’s dependants; or

(ii) pay the employee an additional amount to do so.

(4) An employer who terminates the employment of an employee who is required to live at the place of employment or to reside on any premises owned, leased or provided by the employer may not require the employee to vacate the said premises or place unless-

(a) in the case of an employee residing on agricultural land, the employer gives to the employee three months’written notice to vacate; or

(b) in the case of all other employees, the employer gives to the employee at least one month’s written notice to vacate.

(5) If an employee has referred a dispute to the Labour Commissioner alleging an unfair dismissal within 30 days following the termination of employment the employer may not, despite subsection (4), require the employee to vacate the place or premises until the dispute is resolved in terms of Part G of this Chapter or otherwise disposed of”

Part F

Termination of Employment

Section 29: Period of employment

For the purposes of this part the period of employment includes -

(a) the time that the employee worked for the employer;

(b) the period of any leave granted in terms of this Act;

(c) any leave of absence granted in terms of this Act or granted by the employer for any other reason;

(d) any period of suspension;

(e) if the employee has been reinstated, the period from the date of dismissal to the date of reinstatement; and

(f) the period of any lawful strike or lockout.

Section 30: Termination of employment on notice

(1) Subject to any provisions of this Part to the contrary, if a contract of employment may be terminated on notice, the period of notice must be not less than-

(a) one day, if the employee has been employed for 4 weeks or less;

(b) one week, if the employee has been employed for more than 4 weeks but not more than one year;

(c) one month, if the employee has been employed for more than 1 year.

(2) An employer and an employee may agree to a longer notice period that is longer than that provided for in subsection (1) provided that it is of equal duration for both parties.

(3) Subject to subsection (4), notice of termination must be given in writing, stating the reasons for termination, if termination is by the employer, and the date on which the notice is given, which may be-

(a) on any working day in respect of an employee contemplated in subsection (1)(a);

(b) on or before the last working day of the week in respect of an employee contemplated in subsection (i)(b); or

(c) on the first or the 15th of the month in respect of an employee contemplated in subsection (1)(c).

(4) Despite subsection (3), an illiterate employee may give notice orally.

(5) An employer must not give notice of termination -

(a) during any period of leave to which the employee is entitled in terms of Part D of this Chapter; or

(b) to run concurrently with any such period of leave.

(6) Nothing in this section affects the right -

(a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal terms of this Act or any other law; or

(b) of an employer or an employee to terminate the contract of employment without notice, for any cause recognised by law, or to make payment instead of notice in terms of section 31

(7) Nothing in this section prevents an employer of an employee from waiving any right to notice conferred by this section.

Section 31: Payment instead of notice

(1) Instead of giving an employee notice in terms of section 30, an employer may pay the employee the remuneration the employee would have received, if the employee had worked during the period of notice.

(2) If an employee gives notice of termination of employment, the employer-

(a) may waive the notice, but

(b) in that case, must pay the employee the remuneration contemplated in subsection (1).

(3) Instead of giving an employer notice in terms of section 30, an employee may pay the employer the remuneration the employer would have paid, if the employee had worked during the period of notice.

Section 32: Automatic termination of contracts of employment

(1) Subject to a notice in terms of subsection (2), a contract of employment terminates automatically -

(a) one month after

(i) the death or sequestration of the employer, if the employer is an individual;

(ii) the date on which the employer is wound up, if the employer is a juristic person; or

(iii) the date on which the partnership is dissolved, if the employer is a partnership; or

(b) at the end of a longer period -

(i) provided for in the contract of employment or a collective agreement; or

(ii) during which the employer continues to carry on business.

(2) At any time during the period contemplated in subsection (1), an executor, administrator, liquidator or a partner may give notice to terminate an employee’s contract of employment in accordance with this Part, or of a collective agreement.

(3) Despite the provisions of any law to the contrary, an employee whose contract is terminated in the circumstances referred to in subsection (1) is a preferent creditor in respect of any remuneration due or monies payable to the employee in terms of this Act.

Section 33: Unfair dismissal

(1) An employer must not, whether notice is given or not, dismiss an employee-

(a) without a valid and fair reason; and

(b) without following -

(i) the procedures set out in section 34, if the dismissal arises from a reason set out in section 34(1); or

(ii) subject to any code of good practice issued under section 137, a fair procedure, in any other case.

(2) It is unfair to dismiss an employee because that employee -

(a) discloses information that the employee is entitled or required to disclose to another person;

(b) fails or refuses to do anything that an employer must not lawfully permit or require an employee to do;

(c) exercises any right conferred by -

(i) this Act; or

(ii) the terms of the contract of employment or collective agreement;

(d) belongs, or has belonged, to a trade union;

(e) takes part in the formation of a trade union; or

(f) participates in the lawful activities of a trade union -

(i) outside of working hours; or

(ii) within working hours.

(aa) with the consent of the employer; or

(bb) in the circumstances contemplated in section 67(4).

(3) It is unfair to dismiss an employee because of such employee’s sex, race, colour, ethnic origin, religion, creed or social or economic status, political opinion or marital status.

(4) In any proceedings concerning a dismissal-

(a) the employee establishes the existence of the dismissal;

(b) it is presumed, unless the contrary is proved by the employer, that the dismissal is unfair.

Section 34: Dismissal arising from collective termination or redundancy

(1) If the reason for an intended dismissal is the reduction of the workforce arising from the re-organisation or transfer of the business or the discontinuance or reduction of the business for economic or technological reasons, an employer must -

(a) at least four weeks before the intended dismissals are to take place, inform the Labour Commissioner and any trade union which the employer has recognised as the exclusive bargaining agent in respect of the employees, of -

(i) the intended dismissals;

(ii) the reasons for the reduction in the workforce;

(iii) the number and categories of employees affected; and

(iv) the date of the dismissals;

(b) if there is no trade union recognised as the exclusive bargaining agent in respect of the employees, give the information contemplated in paragraph (a) to the workplace representatives elected in terms of section 67 and the employees at least 4 weeks before the intended dismissals.

(c) subject to subsection (3), disclose all relevant information necessary for the trade union or workplace representatives to engage effectively in the negotiations over the intended dismissals;

(d) negotiate in good faith with the trade union or workplace unionrepresentatives on

(i) alternatives to dismissals;

(ii) the criteria for selecting the employees for dismissal; and

(iii) how to minimise the dismissals;

(iv) the conditions on which the dismissals are to take place; and

(v) how to avert the adverse effects of the dismissals.

(e) select the employees according to selection criteria that are either agreed or fair and objective.

(2) Despite subsection (l)(a) and (b), an employer may inform the trade union or workplace representative of the intended dismissals in less than four weeks if it is not practicable to do so within the period of four weeks.

(3) When disclosing information in terms of subsection (l)(c), an employer is not required to disclose information if -

(a) it is legally privileged;

(b) any law or court order prohibits the employer from disclosing it; or

(c) it is confidential and, if disclosed, might cause substantial harm to the employer.

(4) If, after the negotiations and selections contemplated in subsection (1),the parties do not reach an agreement, either party may, within one week after period referred to in subsection (1) or subsection (2), refer the matter to the Labour Commissioner, who must appoint a conciliator to assist the parties to resolve their dispute.

(5) after appointment in terms of subsection (4), the conciliator must, as soon as is reasonably possible, in an attempt to resolve the dispute, convene a meeting of the parties and may convene additional meetings as may be necessary up to a maximum period of four weeks as from the date that the dispute was referred to the Labour Commissioner in terms of subsection (4).

(6) During the periods referred to in subsection (1), (4) and (5)-

(a) subsection 1(c) and (d) continues to apply to the employer, with the necessary changes; and

(b) the employer may not dismiss an employees in terms of this section, unless the dispute has been settled or otherwise disposed of.

(7) If there is a disguised transfer or continuance of an employer’s Operation which employs or employed employees who are to be dismissed or were dismissed in terms of this sections, the employees in their collective bargaining agent have the right to apply to the Labour Court for appropriate relief, including an order:

(a) directing the restoration of the operation;

(b) directing reinstatement of the employees; or

(c) awarding lost and future earnings.

(8) Nothing contained in this section prevents an employee from referring a dispute of unfair dismissal or failure to bargain in good faith to the Labour Commissioner in respect of the employee’s dismissal.

(9) For the purpose of subsection (7),”disguised transfer or Continuance” of an employers operation includes any practice or situation whereby an employer who runs or operates any business purports to have gone out of business or have discontinued all part of its business operations, when in fact those business operations are continued under another name or form or carried out at another location, without the employer disclosing the full facts to the affected employees or their collective bargaining agent.

(10) An employer who contravenes or fails to comply with this section commits an offence and is liable to a fine not exceeding N$10 000, or to imprisonment for a period not exceeding two years or both the fine and imprisonment.

Section 35: Severance pay

(1) Subject to subsection (2), an employer must pay severance pay to an employee who has completed 12 months of continuous service, if the employee-

(a) is dismissed;

(b) dies while employed; or

(c) resigns or retires on reaching the age of 65 years.

(2) Subsection (1) does not apply -

(a) to a fair dismissal on grounds of misconduct or poor performance;

(b) if the employee unreasonably refuses to be reinstated; or

(c) if the employee unreasonably refuses to accept employment on terms no less favourable than those applicable immediately before the termination of employment with -

(i) the surviving spouse, heir or dependant of a deceased employer within one month of the death of the employer; or

(ii) one or more of the former partners within one month of the dissolution of the partnership, if the employer was a partnership.

(3) Severance pay in terms of subsection (1) must be in an amount equal to at least one week’s remuneration for each year of continuous service with the employer.

(4) When calculating the length of an employee’s service for the purposes of subsections (1) and (3), the following rules apply:

(a) if the employer is an individual, and dies and the employee is employed subsequently by the surviving spouse, heir or dependent of the deceased employer, the employee retains any service acquired before the employer’s death;

(b) if the employer was a partnership that was dissolved, and the employee is employed subsequently by one or more of the former partners of that partnership, the employee retains any service acquired before the dissolution of the partnership;

(c) if the employer’s business has been transferred to another person and the employee continues in the service of that business after the transfer, the employee retains any service acquired before the transfer of that business;

(d) the service of an employee who works for the same employer on a seasonal basis for two or more successive years is regarded as continuous provided that the period of service is made up of the periods actually worked; and

(e) continuous service includes any period of employment contemplated in section 29.

(5) The payment of severance pay in terms of this section does not affect an employee’s right to any other amount that the employer is obliged to pay the employee.

(6) If the contract of employment is terminated as a result of the death of the employee and in the absence of a will, the employer must pay the severance pay to-

(a) the employee’s surviving spouse; or

(b) if there is no spouse, to the employee’s children;

(c) if there are no children, to the employee’s estate.

Section 36: Transportation on termination of employment

(1) If the employee is dismissed during the first 12 months of employment, and at any place other than the place where the employee was recruited, the employer must either -

(a) transport the employee to the place that the employee was recruited; or

(b) pay the employee an amount equal to the costs of that transport

(2) Subsection (1) does not apply if an employee unreasonably refuses to be reinstated.

Section 37: Payment on termination and certificates of employment

(1) On termination of employment, an employer must pay the employee all the remuneration due to the employee for-

(a) work done before the termination;

(b) any paid time off that the employee is entitled to in terms of sections 21(5) or (6) or 22(5) that the employee has not taken;

(c) any period of annual leave due for any completed annual leave cycle in terms of section 23;

(d) any annual leave pay to which the employee is entitled for any incomplete annual leave cycle in terms of subsection (2);

(e) any severance pay due in terms of section 35;

(f) any notice pay contemplated in section 31 if the employee is paid instead of being given notice; and

(g) any transport allowance due in terms of section 36.

(2) Subject to subsection (3), an employee whose contract is terminated is entitled to accrued annual leave pay on a pro rata basis for work performed during an incomplete annual leave cycle as defined in section 23

(3) An employee is not entitled to the accrued annual leave pay contemplated in subsection (2) if that employee, without good cause, fails -

(a) to give notice of termination in terms of section 30, and to work the full period of the notice; or

(b) to pay the employer the remuneration contemplated in section 31(3) instead of working the period of notice.

(4) An employer must pay the remuneration contemplated in subsection (1) to the employee -

(a) on or before the next pay day after the termination; and

(b) in accordance with section 11.

(5) On termination of employment an employer must give an employee a certificate of service stating -

(a) the employee’s full name;

(b) the name and address of the employer;

(c) a description of the industry in which the employer is engaged;

(d) the date of commencement and date of termination of employment;

(e) the employee’s job description;

(f) the remuneration at date of termination; and

(g) if the employee requests, the reason for termination of employment.

(6) Nothing in this section prevents an employer from furnishing, an employee whose employment has been terminated with a testimonial or other certificate of good character.

Part G

Disputes Concerning this Chapter

Section 38: Disputes concerning this Chapter

(1) If there is a dispute about the non-compliance with, contravention, application or interpretation of this Chapter, any party to the dispute may refer the dispute in writing to the Labour Commissioner.

(2) The person who refers the dispute must satisfy the Commissioner that a copy of the notice of a dispute has been served on all the other parties to the dispute.

(3) The Labour Commissioner must refer the dispute to an arbitrator to resolve the dispute through arbitration in accordance with Part C of Chapter 8 of this act.

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