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Chapter 12

PERSONNEL MATTERS

12.21 NON-EDUCATORS

12.21.1Legislative and Policy Framework

ACTS

  • Basic Conditions of Employment Act, 1997 [BCE]

Limpopo

GUIDELINES

  • Limpopo Procedure Manual For Recruitment And Appointment Of Contract Workers, [Reference B5 PMRA]

12.21.2Framework for the Development of School Policy on Non-Educators

  1. Post provision for Non-Educators
    Non-Educators include administrative staff, caretakers, general assistants, security staff, etc.  The number of staff allocated will vary in accordance with the size of the school.  Schools will not automatically become eligible for all posts that they may qualify for.  Posts will be allocated according to budget availability in the Province.
  2. Advertisements
    The Department currently advertises vacancies for non-educator posts by means of a Provincial Circular or in certain instances in the media.
  3. Applications
    In the case of non-educator applications, the Principal forwards a recommendation of who should be appointed in the post.
  4. Informing applicants
    The department will inform the candidate appointed in a non-teaching post.
  5. Assumption of duty
    For non-teaching appointments, the Principal should inform the District Office in writing that the person has assumed duty. The service contract comes into effect as soon as the employee accepts the letter of appointment issued by the Department and assumes duty.
  6. Tax and unemployment insurance fund
    When SGB appointments are made the SGB should ensure that the school is registered with the South African Revenue Services (SARS) as an employer. Tax must be deducted from the employee on a monthly basis and forwarded to the SARS. The amount to be deducted must be established from the SARS tax tables.
    The SGB should further ensure that the school is registered with the Unemployment Insurance Fund (UIF). UIF contributions are deducted up to a prescribed salary notch, which changes from time to time. On registration the UIF will forward this information.
    On a monthly basis 1% from the employee’s salary and another 1% from the school funds should be deducted from the employee’s salary. Both amounts should then be sent to the UIF.
    The above deductions from the employee’s salary should be reflected in the contract. If a school does not abide by the above requirements when employing additional staff the school may face legal action against it.

12.21.3Basic Conditions of Employment Act, 1997

  1. Who is this Act for?
    This Act applies to all workers and employers except members of the National Defence Force, National Intelligence Agency, South African Secret Service and unpaid volunteers working for charities.
    This Act must be obeyed even if other agreements are different.
  2. Working time
    This section does not apply to senior managers (those who can hire, discipline and fire), sales staff who travel and workers who work less than 24 hours a month.

    • Ordinary hours of work
      A worker must NOT work more than:
    • 45 hours in any week
    • 9 hours a day if a worker works 5 days or less a week, or
    • 8 hours a day if a worker works more than 5 days a week.
    • Overtime
      • If overtime is needed, workers must agree to do it and they may not work more than 3 hours overtime a day or 10 hours overtime a week.
      • Overtime must be paid at 1.5 times the workers’ normal pay or by agreement get paid time off.
      • More flexibility of working time can be negotiated if there is a collective agreement with a registered trade union. For example, this can allow more flexible hours for working mother and migrant workers.
      • Compressed work week: You may agree to work up to 12 hours in a day and work fewer days in a week. This can help working mothers and migrant workers by having a longer weekend.
      • Averaging: A collective agreement may permit the hours of work to be averaged over a period of up to four months. A worker who is bound by such an agreement cannot work more than an average of 45 ordinary hours a week and an average of five hours of overtime a week over the agreed period. A collective agreement for averaging has to be re-negotiated each year.
    • Meal breaks and rest periods
      A worker must have a meal break of 60 minutes after 5 hours work. But a written agreement may lower this to 30 minutes and do away with the meal break if the worker works less than 6 hours a day.  A worker must have a daily rest period of 12 continuous hours and a weekly rest period of 36 continuous hours, which, unless otherwise agreed, must include Sunday.
    • Sunday work
      A worker who sometimes works on a Sunday must get double pay. A worker who normally works on a Sunday must be paid at 1.5 times the normal wage. There may be an agreement for paid time off instead of overtime pay.
    • Night work
      Night work is unhealthy and can lead to accidents. That is workers working between 6:00 at night and 6:00 in the morning must get extra pay or be able to work fewer hours for the same amount of money.Transport must be available but not necessarily provided by the employer.
      Workers who usually work between 11:00 at night and 6:00 in the morning you must be told of the health and safety risks. They are entitled to regular medical check-ups, paid for by the employer. They must be moved to a day shift if night work develops into a health problem. All medical examinations must be kept confidential.
    • Public holidays
      Workers must be paid for any public holiday that falls on a working day. Work on a public holiday is by agreement and paid at double the rate. A public holiday is exchangeable by agreement.
  3. Leave
    • Annual leave
      A worker can take up to 21 continuous days’ annual leave or by agreement, 1 day for every 17 days worked or 1 hour for every 17 hours worked.  Leave must be taken not later than 6 months after the end of the leave cycle.  An employer can only pay a worker instead of giving leave if that worker leaves the job.
    • Sick leave
      A worker can take up to 6 weeks’ paid sick leave during a 36 months cycle.
      During the first 6 months a worker can take one day’s paid sick leave for every 26 days worked.
      An employer may want a medical certificate before paying a worker who is sick for more than 2 days at a time or more than twice in 8 weeks.
    • Maternity leave
      A pregnant worker can take up to 4 continuous months of maternity leave. She can start leave any time from 4 weeks before the expected date of birth OR on a date a doctor or midwife says is necessary for her health or that of her unborn child. She also may not work for 6 weeks after the birth of her child unless declared fit to do so by a doctor or midwife.
      A pregnant or breastfeeding worker is not allowed to perform work that is dangerous to her or her child.
    • Family responsibility leave
      Full time workers employed longer than 4 months can take 3 days paid family responsibility leave per year on request when the worker’s child is born or sick or for the death of the worker’s spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
      An employer may want proof that this leave was needed.
  4. Job information and payment
    • Job information
      Employers must give new workers information about their job and working conditions in writing. This includes a description of any relevant council or sectoral determination and a list of any other related documents.
    • Keeping records
      Employers must keep a record of at least:

      • the worker’s name and job
      • time worked
      • money paid
      • date of birth for workers under 18 years old.
    • Payment
      An employer must pay a worker:

      • in South African money
      • daily, weekly, fortnightly or monthly
      • in cash, cheque or direct deposit.
    • Pay slip information
      Each pay slip must include:

      • employer’s name and address
      • worker’s name and job
      • period of payment
      • worker’s pay
      • amount and purpose of any deduction made from the pay
      • actual amount paid to the worker.
      • If needed to add up the worker’s pay, the payslip must also include:
      • ordinary pay rate and overtime pay rate
      • number of ordinary and overtime hours worked during that period of payment
      • number of hours worked on a Sunday or public holiday during that period
      • total number of ordinary and overtime hour worked in the period of averaging, if there is an averaging agreement.
    • Approved deductions
      An employer may not deduct any money from a worker’s pay unless:

      • that worker agrees in writing
      • the deduction is required by law or permitted in terms of a law, collective agreement, court order or arbitration award.
    • Adding up wages
      • Wages are based on the number of hours normally worked.
      • Monthly pay is 4 and 1/3 times the weekly wage.
  5. Termination of employment
    • Notice
      A worker or employer must give notice to end an employment contract of not less than:

      • 1 week, if employed for four weeks or less
      • 2 weeks, if employed for more than four weeks but not more than one year;
      • 4 weeks, if employed for one year or more.
        • Notice must be in writing except from a worker who cannot write.
        • Workers who stay in employer’s accommodation must be given 1 month’s notice of termination of the contract or be given alternative accommodation until the contract is lawfully terminated.
        • An employer giving notice does not stop a worker from challenging the dismissal in terms of the Labour Relations Act or any other law.
    • Severance pay
      An employer must pay a worker who is dismissed due to the employer’s operational requirement pay equal to at least 1 week’s severance pay for every year of continuous with that employer.
    • Certificate of service
      When a job ends, a worker must be given a certificate of service.
  6. Child labour and forced labour
    •  It is against the law to employ a child under 15 years old.
    •  Children under 18 may not do dangerous work or work meant for an adult.
    •  It is against the law to force someone to work.
  7. Variation of basic conditions of employment
    • Bargaining council
      A collective agreement concluded by a bargaining council can be different from this law as long it does not:

      • lower protection of workers in terms of health and safety and family responsibilities
      • lower annual leave to less than two weeks
      • lower maternity leave in any way
      • lower sick leave in any way
      • lower protection of night workers
      • allow for any child labour or forced labour.
    • Other agreements
      Collective agreements and individual agreements must follow the Act.
    • The Minister
      The Minister of Labour may make a determination to vary or exclude a basic condition of employment. This can also be done on application by an employer or employer organisation.
  8. Sectoral determinations
    Sectoral determinations may be made to establish basic conditions for workers in a sector and area.
  9. Employment conditions commission
    This Act makes provision for the Employment Conditions Commission to advise the Minister of Labour.
  10. Monitoring, enforcement and legal proceedings
    Labour inspectors must advise workers and employers on their labour rights and obligations. They inspect, investigate complaints, question people and inspect, copy and remove records. An inspector may serve a compliance order to a compliance order by writing to the Director General of the Department of Labour, who will then look at the facts and agree, change or cancel the order. This decision can be challenged in the Labour Court. Workers may not be treated unfairly for demanding their rights in terms of this Act.
  11. General
    It is a crime to:

    • hinder, block or try to wrongly influence a labour inspector or any other person obeying this Act
    • get or try to get a document by stealing, lying or showing a false or forged document
    • pretend to be a labour inspector or any other person obeying this Act
    • refuse or fail to answer fully any lawful question asked by a labour inspector or any other person obeying this Act
    • refuse or fail to obey a labour inspector or any other person obeying this Act
  12. Grievance rules for the Public Service
    • Definitions
      In this procedure, unless the context indicates otherwise-

      • Commission” means the Public Service Commission established in terms of section 196[1] of the Constitution;
      • “Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
      • “days” refers to working days;
      • “executing authority” means an authority as defined in subsection 1[1] of the Public Service Act, 1994;
      • “grievance” means a dissatisfaction regarding an official act or omission by the employer which adversely affects an employee in the employment relationship,
      • excluding an alleged unfair dismissal;
      • “head of department” means the incumbent of a post mentioned in Schedules 1, 2 and 3 of the Public Service Act, 1994, or the person acting in such post;
      • “Public Service Act” means the Public Service Act, 1994 (Proclamation No 103 of 1994);
      • “recognised trade union” means all the trade unions admitted to the Public Service Co-ordinating Bargaining Council as well as any other trade union that enjoys the relevant organisational right in particular department;
      • “resolve” means to settle a grievance to the satisfaction of the aggrieved employee;
      • “representative” means a fellow employee, a representative or official of a recognised trade union.
  13. Purpose and application
    The purpose of this grievance procedure is to advance sound labour relations and address grievances in the public service by fulfilling the primary objectives of this procedure which are:

    • to give effect to section 196(4)(f)(ii) of the Constitution which empowers the Commission to investigate grievances of employees in the public service concerning official acts or omissions, and recommend appropriate remedies;
    • to give effect to section 11 of the Public Service Commission Act, 1997 (Act No. 46 of 1997) which empowers the Commission to make Rules to deal with grievances;
    • to promote –
      • speedy, impartial and equitable handling of grievances;
      • sound labour relations;
      • resolution of individual grievances at the lowest possible level in a department.
  14. Managing a grievance
    • A grievance must as far as possible be resolved by an employer and as close to the point of origin as possible.
    • The employer must ensure that the grievance is dealt with in a fair, impartial and unbiased manner, and that the principles of natural justice are observed. The procedure must be such that it assists and enables an employer and an employee to address dissatisfaction. No employee must be victimised or prejudiced, directly or indirectly, as a result of lodging a grievance. If disciplinary action is being taken against an employee, utilisation of this procedure by the employee to address any matter related to the disciplinary action shall not halt the disciplinary procedure. A grievance must be lodged in writing and all decisions taken during the process must be in writing. An employee may be assisted by a representative.
  15. Adherence to time limits
    • In determining adherence to time limits, this should be calculated by excluding the first day and including the last day.
    • The parties must adhere to the time limits set out in this procedure, unless they mutually agree to extend them.
    • A grievance must be lodged with the employer within 90 days from the date on which the employee became aware of the official act or omission which adversely affects him or her.
    • An employee may demand that his or her grievance be referred to the Commission within 10 days after receiving the executing authority’s decision.
  16. Provision of information
    • An employer must provide relevant information necessary for an employee to lodge or pursue a grievance, if requested.
    • The provision of such information is subject to any limitations imposed by law.
    • The employee must be provided with information about the status of the grievance and the progress made towards the planned finalisation date.
    • The employer must provide the employee with a copy of the grievance form after each applicable level of authority dealt with the grievance.
  17. Departmental stages to address a grievance
    • An employee may lodge a grievance with an employee designated to facilitate the resolution of grievances in the department.
    • The prescribed form at Annexure A must be used when a grievance is lodged.
    • The designated employee must liaise with the relevant structures of authority of the department in an attempt to resolve the grievance.
    • The grievance may be resolved by any person within the relevant structures of authority who has the requisite authority to do so.
    • The aggrieved employee will be duly informed by the designated employee about the status and progress made towards the resolution of the grievance.
    • If the grievance is resolved to the satisfaction of the aggrieved employee the confirmation thereof will be reduced to writing by the designated employee.
    • If a grievance cannot be resolved, the executing authority must inform the aggrieved employee accordingly.
    • The department (including the executing authority) has 30 days to deal with the grievance. The period may be extended by mutual agreement in writing.
    • If after the aggrieved employee is informed of the outcome of the grievance and he/ she remains dissatisfied –
      • he/ she must inform the executing authority in writing within 10 days;
      • the executing authority must in terms of section 35 (1) of the Public Service Act, 1994, forward the grievance and the relevant documentation to the Public Service Commission for a recommendation within five days of being informed by the aggrieved employee.
    • If the grievance constitutes an alleged unfair labour practice as defined in the LRA, the employee may inform the executing authority in writing that he/ she wishes to utilise the dispute resolution mechanisms provided for in the constitution of the PSCBC or the relevant sectoral council (whichever is applicable) and that the Public Service Commission should therefore not consider the grievance.
    • If there is failure on the part of the department to respond to the grievance within the period referred to in clause 8, the aggrieved officer may lodge his or her grievance with –
      • the Commission directly; or
      • in the case of an alleged unfair labour practice, with the PSCBC or the relevant sectoral council (whichever is applicable) in terms of its dispute resolution procedure.
  18. Referral to the Commission
    Once the Commission has received all information from the executing authority, it must within 30 days consider such grievance and inform the executing authority of its recommendation and the reasons for its decision in writing. On receipt of the Commission’s recommendation, the executing authority must, within 5 days, inform the employee and the Commission of his or her decision in writing.
  19. Grievance of Head of Department
    • If a head of department has a grievance, he/ she may –
      • in the case of the head of a national department, submit the grievance to the President; or
      • in the case of a head of provincial department, submit the grievance to the relevant Premier.
    • The President or Premier has 30 days to deal with the grievance. The period may be extended by mutual agreement. Clause F9 and 10 will, read with the changes required by the context, apply to all grievances of heads of department.
  20. Evaluation
    The head of department must ensure that grievance resolution is evaluated by maintaining a record of the number of grievances resolved from the beginning of each calendar year and report to the Commission on a six-monthly basis. The Commission must report on the management of grievances and the efficiency of the grievance procedure.
  21. Other procedures
    When a grievance is lodged in terms of this procedure, an aggrieved employee must disclose whether he or she is utilising any other procedure.
  22. Transitional measures
    • A grievance lodged before the promulgation of the Interim Rules, namely before 1 July 1999, shall be dealt with and concluded as if the Public Service Regulations had not been repealed.
    • A grievance lodged before the promulgation of these grievance rules, must be dealt with and concluded in terms of the Interim Grievance Rules promulgated in Government Gazette No 20231 of 1999.