AGRICULTURAL LABOUR LAW MYTHS by Christo Bester

South Africa’s labour environment is highly regulated. Every workplace is unique and employers must take individual responsibility for complying with labour law. Compliance requires specialist knowledge, but there are several myths surrounding labour law that lead employers to believe in good faith that they are acting correctly, while in fact they are putting their business at risk.

Popular myths relating to agricultural labour law – and the facts:

1. Myth: “It is paid sick leave when the employee visits the clinic.”

Fact: An employee is only entitled to paid sick leave when he/she is unable to work due to a medical condition. The employer is not expected to remunerate an employee for taking time off to visit the clinic to obtain medication, or in cases of regular clinic or doctor’s visits.

2. Myth: “The employee fired him-/herself by absconding.”

Fact: An employee is said to have absconded when he/she is absent from work for more than five days, without informing the employer of the reason for the absence. It is vital that the employer is able to prove that the employee did not intend to return to work. The employer must also try to contact the employee and must have proof of these efforts. A hearing must be held, even in the employee’s absence, in order to dismiss the employee.

3. Myth: “An employee can be summarily dismissed for committing a serious offence.”

Fact: Under no circumstances can an employer dismiss an employee (even with a valid reason) without first holding a disciplinary hearing. A disciplinary hearing ensures that a fair procedure is followed and that there is a substantive reason to justify the dismissal.

4. Myth: “Upon retirement, an employee receives a long-service payment, or severance package.”

Fact: No legislation prescribes a long-service payment and this is always at the employer’s discretion. Severance pay is only payable when an employee is retrenched.

5. Myth: “The employer can use a fixed-term employment contract as a probation period.”

Fact: To use a fixed-term employment contract as a probation period is unfair labour practice. Termination of the contract after completion of the probation period can be considered to be unfair dismissal. Employers must clearly understand that disguising permanent employment as a fixed-term employment contract is illegal.

Employers must be proactive and ensure that employment contracts, the disciplinary code, policies, and procedures are in place and that this documentation complies with applicable labour legislation.