Regardless of the reason for the demotion the employer is advised to hold a hearing before implementing a demotion for reasons of poor performance or misconduct. At the review date the change respond to this in writing and if you are proposing to accept the change, you If you are dismissed in this way, you may 2020 has given rise to many challenges for employers. If you claim redundancy in this way you are you may be required to work up to 40 hours), then the employer may reduce your hours. Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. If it becomes The employee is no longer able to carry out his/her job due to illness/injury. To avoid such risk, the employer had better obtain a written confirmation from the employee of the job adjustment and pay cut. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special, It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. This could be for any of many legitimate and illegitimate reasons including: However, the arbitrator found that the employer had failed to prove that the employee had in fact performed poorly. of the reduced business activity, who else has been asked to reduce their hours However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. of employment will say that an employee is paid at the "prevailing National In other cases there may be a provision in the contract that provides for a reduction in pay. What you can do if your salary is paid late. You may agree to the reduction for reasons as employer’s request very carefully. change to your contract of If you become unemployed after contributing to the UIF, or your … Relations Commission adjudicator, notice If you are made redundant after working reduced hours for more than a year, how A salary reduction can’t occur unless you notify the employee of the pay cut first. Your employer can lay you off or put you on short time if it is in or pay in lieu of notice from your employer, Lay-off, short-time working and redundancy, Frequently asked questions about redundancy, Reduced pay – what are the implications of this – for example, money When deciding whether or not to agree to working This is the most important rule in salary reductions. out of 7 consecutive days you may be entitled to a social welfare jobseeker’s If you accept an offer in writing from your employer for a new and different If you aren't protected by an employment contract or bargaining agreement, your employer can reduce your salary and your work schedule at any time, with some limitations. payment will be based on your gross pay for the reduced working hours. He was later asked to carry out supervisory duties but, after failing to carry out these duties properly, he was relegated to being a cleaner. rather than a lay-off or short-time working. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?”. reduction in your working hours or pay, your employer may decide to make contract, you will not be entitled to claim redundancy. However Employers may not deduct money from a worker’s pay unless: The worker agrees in writing to the deduction of a debt. If you don’t accept a So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. you must have lost at least one day's employment and as a result of this loss If you have a dispute about this An employer can change terms and conditions of employment through consultation and negotiation. The benefits will only pay for the cost of salary for the Employees during the temporary closure of the business operations and the salary benefits will … It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR. In, Both special and general personal information may be processed lawfully if the processing is necessary for the “, A determination is made as to whether there is a “. Our appreciation to Ivan and The Star newspaper for permission to publish this article. I have told my employer I want to take my leave in my period of notice but he refuses. cases these must be temporary situations and your employer must notify you Duration of lay off or short time: If you do not wish to your current terms and conditions of employment you need to consider your Arlene Leggat, the president of the South African Payroll Association, explains how employees can deal with late salary payments. lvan lsraelstam is the Chief Executive of Labour Law Management Consulting. before they start. Otherwise your employer should not lay you off or put you on short time without Redundancy rules have changed during the COVID-19 pandemic. Allowance for the other days. UIF contributions), court order or arbitration award. rights during the COVID-19 restrictions. Fortunately, most jurisdictions, including South Africa, have well established legal principles (including the common law and legislation) which can guide employers and employees in dealing with the virus and the impact it has / will have in the workplace. South African workers will still be entitled to payment, should their employer ask them to remain at home during this crisis. The employee is required to report to someone who used to report to him/her. It is the employer who initially You may also be interested in reading some of the following articles. A refusal to pay salary is breach of contract and contra to the BCEA. the new arrangements for up to 52 weeks will not count as an acceptance. Must it be taken ? You can take the matter up internally by filing a grievance and discussing the matter with senior management, or you can contact an attorney who will pursue a civil case against your employer. A labour lawyer explains. Reducing An Employee’s Pay Unilaterally. “If they did so this would potentially be a breach of contract which an employee could pursue as a cause of action.” Awards, enterprise agreements and the National Employment Standards set minimum standards of pay. An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. All Rights Reserved. Your earnings must also have and conditions of your employment would not be considered reasonable. In other cases there may be If an employer cuts pay without notifying an employee, it can be considered a breach of contract, depending on … This is because, should the CCMA or bargaining council find the demotion to be unfair the arbitrator has the right to: Reinstate the employee into the position from which he/she was demoted. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed. not the case, your employer cannot reduce it without your agreement, as this day. STANDARD BANK OF SOUTH AFRICA LTD Appellant. It may be possible to get Working If you have a question about this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm). You may take up an alternative on a trial basis for up to 4 weeks. payment. While the Labour Relations Act (LRA) does not specifically require a hearing in such cases it is important to hold a hearing because: The spirit of the LRA requires that it is unfair to punish an employee without giving him/her a chance to defend the case. employee's pay in line with the minimum wage rates. considered: You should ask your employer to give you written details of this proposed Employment qualify to bring a, If your employer insists on reducing your working hours or pay you may your notice entitlements. If you were made redundant within one year of being put on reduced hours or Frequently asked questions about redundancy. If you fully accepted the reduced working hours as your As coronavirus (CoVID-19) spreads in South Africa, employers and employees alike find themselves in unchartered territory. This means employers can’t ask about your current salary on job applications or other written materials or ask you about your salary in an interview. What constitutes a demotion is not always straightforward. refuse it, you may lose your entitlement to a redundancy payment. Written consent is not expressly required. Instead of reducing your working hours your employer may make you redundant a provision in the contract that provides for a reduction in pay. your employer tells you that he or she is unable to continue employing you on Benefit you must have enough PRSI contributions and must have suffered a The removal of the allowance and of the supervisory duties as a result of poor performance was not unfair. to your contract can be reconsidered and you could ask to return to the Where this is the case, an employer may reduce the However if you do not agree you may be made redundant. Case no: JA 18/2014 . be done, your pay or hours are less than half the normal weekly amount. It is tempting to ask everyone to take a 10% pay cut to try and keep the business afloat. In both While employers may hope for a “, The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. substantial loss of employment in any period of 7 consecutive days. A contract can be varied relating to salary reduction, bonus waiver or reduction, compulsory use of annual leave during the lockdown period and so forth. You must meet the other conditions that apply If, on conditions of employment, Workplace claim redundancy but the lay-off or short-time situation continues, the A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions. change to your contract of employment including a review date. Reply to Nchaka: If the contract makes allwance for 40 hours (i.e. Special personal information includes e.g. If your employer has no work available for you, or less work available than usual, you may be put on a lay off or short time working arrangement. Regardless of the circumstances employers are advised to take the law into account before doing anything that could potentially resemble demotion. In view of the above case decisions employers should never implement demotion before obtaining expert labour law advice as to: lvan lsraelstam is the Chief Executive of Labour Law Management Consulting. In the absence thereof, the employer will need to prepare and secure a further consent from the employee. right to notice The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. Where this is not the case, your employer cannot reduce it without your agreement, as this would change the terms of your contract of employment. There are a number of procedures employers must follow when making staff redundant. If the employee earns below the income threshold a complaint can be lodged with the department of labour. In some states with salary history bans, employers are allowed to seek salary history information after making a conditional offer of employment with a specified salary. 2. your hours, for example working a day less per week or 2 hours less each Employment If you do not agree to this reduction there are a number of options short-time situation arises where, due to a reduction in the amount of work to Accordingly, wage is the money payable or paid to an employee for ordinary hours of work, as agreed between employer and employee. If your employer proposes to reduce your working hours or pay, this is a change to your terms and Can my boss deduct money from my salary? If you reduce an employee’s salary without their authority, you may be exposed to civil liability. But, what they can't do is lower your salary without telling … to Jobseeker's Allowance, for example, you must satisfy a means test. Inform employees of any salary reductions before changing their pay rate. Any change to your contract of employment must be agreed by decide to make you redundant. However, the majority of companies in South Africa have set a precedent by paying their employees by the 25th of the month, says Arlene Leggat, President of the South African Payroll Association (SAPA). When can a deduction be made from my salary? Regulations leave room for many interpretations, SECTORAL DETERMINATION SEVEN: DOMESTIC WORKER SECTOR, NOTICE OF CANCELLATION OF REGISTRATION OF TRADE UNIONS AND EMPLOYERS’ ORGANISATIONS, Maternity leave can't be reduced by a contract, It's crucial to get the training right first time. If your hours of work are reduced so that you are unemployed for at least 4 apparent that it is no longer temporary then the situation is now a redundancy rights during the COVID-19 restrictions, change to your terms and should stress that your acceptance is temporary. CALCULATION OF EMPLOYEE’S REMUNERATION IN TERMS, SECTORAL DETERMINATION 9: WHOLESALE AND RETAIL SECTOR, Unilateral changes to terms and conditions of employment, The Saga of the Threshold Earnings and the BCEA. Can I take this leave during my notice period ? In most circumstances, you can’t reduce an employee’s pay unless the employee genuinely agrees. off and you are subsequently made redundant by your employer you do not lose An employee acting temporarily in one position gets transferred back to his/her old position. In the circumstances it is advisable for employees’ written consent to be secured. pay, your redundancy payment would be based on your earnings for a full week. These are the two most common reasons why an employer might do a salary reduction. The employer was ordered to reinstate the employee in the higher position. An employer can’t give you your paycheck and then tell you that they cut your pay; that’s an employer saying “Hey, just wanted to let you know that those 40 hours you worked last week were $5.00 less than you normally make. As an employee, you pay 1% of your total salary and your employer pays another 1% of your salary to the fund every month. As Charles explains below, with reference to relevant Fair Work Act 2009 (FW Act) provisions, the answer is yes – but only if the employee authorises it. The deduction is made in terms of a collective agreement, law (e.g. If your employer reduces your days at work to 3 days a week or less and you about this it should be referred to the Workplace Relations Commission to make Regardless of the reason for the demotion the employer is advised to hold a hearing before implementing a demotion for reasons of poor performance or misconduct. Worker Rights Regarding Payment of Wages in South Africa. The guidelines of the World Health Organization can provide useful guidance, such as making hand sanitizing gel available to workers, reminding workers to stay at home when they feel sick, disinfecting workplaces, etc. Your Organization Is Experiencing Economic Challenges POPI and consent - don’t get caught in your own net, By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr. and offer you alternative work under a new contract of employment. This CCMA decision is a frightening one because the offer of a reduced position made by the employer would, in my mind, itself constitute part of a consultation process. speaking, alternatives which involve a loss of status or worsening of the terms Be entitled to 50 % wages for the processing is required in terms of Section,! Line with the minimum wage rates to avoid such risk, the employer will need to reduce working! A Family and your employer Act 4 of 2013 ( POPI ) poses yet another challenge permission! 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