Frequently Asked Questions (FAQ)
1)Q: How do I dismiss an employee that is not productive without causing myself problems?
These are general guidelines. Please contact IR Insights before embarking on a performance improvement process or termination of services!
Performance is all about how the employee does the job – i.e. quality. Generally, an employer tries to assist the employee perform the job to its requirements. The employer MUST ensure that the employee is fully aware of the standards for the job, and that the employee is fully trained to do the job. If there appear to be problems with poor performance, then:
- The first step for early signs of poor performance is to hold a counselling session. This is a meeting (an informal conversation) with the employee. You explain where the employee is falling short, what standard is not being met, and discuss the matter fully to see if the reason for the poor performance can be established.
- The important thing is to establish to cause – if you don’t know the cause, you cannot help resolve the problem.
- Record all the proceedings and maintain copies. These records will be required if you eventually have to dismiss the employee and the matter is taken up with the CCMA. You will have to prove that correct and fair procedures were followed, and you need written records to do this. Remember that in a case of unfair dismissal, the employee only has to prove that a dismissal took place. The employer must prove the fairness of the dismissal.
- At the end of the counselling session, the employee must be warned of the consequences of failure to improve where such warning is appropriate. Bear in mind that the aim of the counselling session is not to punish the employee, but to assist him/her to recognize and overcome the problem. There is no rule regarding how many counselling sessions are required before dismissal, nor how much assistance or training must be given before dismissal or demotion to a lower position.
- If performance does not improve, your next meeting may be more formal in the sense that you hold a “hearing” to establish whether the employee has the capacity to improve. The decision will depend on many factors, such as length of service, how long has the employee been doing the job before he/she started failing o deliver the right quality or quantity, the nature of the job, the extent of the employee’s willingness to co-operate and help solve the problem, what effect the poor performance has had on the Company, and of course the nature of the poor performance itself. For example, if it is a vital function that is not being done, then that is serious – immediate improvement is required.
- If the matter comes to dismissal, then the Code of Good Practice – Dismissal must be applied, as well as your own procedures if any.
- Guidelines in cases of dismissal for poor work performance
Any person determining whether a dismissal for poor work performance is unfair should consider –
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not-
(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.
- Generally speaking, and considering all the facts of the matter, you should spend as much time as is reasonably expected to show that the employee was afforded all reasonable opportunity to rectify the matter. Obviously, if the poor performance is causing major operational problems, contact IR Insights for advice.
2)Q: How do I dismiss a group of employees at once
This is called a “common-purpose dismissal”. This is the term used for dismissing an entire group of employees for misconduct by unidentified members of this group, meaning that it can reasonably inferred that everyone in the group was either involved in the misconduct or did not disclose it.. Generally this needs to follow a number of incidents. A mass dismissal can be justified under certain circumstances and where a fair procedure is followed. This is a difficult area to navigate and we suggest that you seek advice.
3)Q: Do I have to have a written contract for an employee?
Section 29 of the Basic Conditions of Employment Act, requires an employer to supply the employee with written particulars of employment – this does not mean that a written contract is absolutely required, but we advise employers to avoid misunderstandings and to give employees written contracts of employment.
If there is no written contract, there is still a contract of employment. This is an implied employment contract, meaning that the general terms of employment are determined by the Basic Conditions of Employment Act or the various Bargaining Council Collective agreements as well as the common law
4)Q: Must I allow time off for religious holidays?
South Africa recognises 13 official public holidays. 2 of these are religious holidays – Christmas Day and Good Friday. In terms of labour law, these public holidays must be granted to all employees, regardless of their religious persuasion.
Legally, employees are not entitled to take time off to observe other religious holidays. But generally, companies come to their own agreements with employees of different faith groups. We suggest that if you agree to granting time off for religious holidays, be clear about whether of paid or unpaid leave. Some Companies allow for paid time off in the form of a deduction from the employee’s annual leave entitlement. Others exchange time e.g. Muslim employees observe noon-time prayers on Fridays so some workplaces accommodate this by giving Muslim staff Friday afternoons off in exchange for half a day on Saturdays.
Our advice to you is that you draft up a leave policy which is published to staff, so that the company’s stance on religious holiday observance is clear.
5)Q: Can I force HIV testing for my employee?
Only in terms of a Court order –see the Code of Good Practice on HIV and Aids
6)Q: What is the difference between Labor Law and Employment Law
It’s the same
7)Q: Which locations do you operate in?
All of South Africa but specifically Cape Town, Port Elizabeth/Jeffries Bay/St Francis Bay and Johannesburg
8)Q: What are the prerequisites for one to become your client?
Just ask and we will assist
How do I reclaim my SDL (Skills Development Levy) ?
Skills Development Levy (SDL) is paid by every employer who’s salary bill exceeds R500,000 per annum. It is 1% of the salary bill and is collected by SARS.
- 50% of this levy is then repaid to the employers on compliance with certain criteria:
- their successful submission of an Annual Training Report (ATR) and Workplace Skills Plan (WSP) (submitted to the relevant Seta by 30 June each year), appointment of a sdf and training having been conducted. This is called a Mandatory Grant Payment and if approved, is paid quarterly.
- The other 50% is used to fund the Setas & NSF (20%). The Setas use their portion for admin costs and the balance to fund the internships, learnerships, etc.
- If an employer is granted an intern/learnership, that funding is known as a Discretionary Grant as there is no entitlement. The chief measurement for a successful intern/learnership is that the recipient is employed thereafter
To apply for internships, learnerships , employers complete a Letter of Intent for funded or non-funded training.
- Non-funded training: the Seta issues a memorandum of understanding (MOU) for the number of learners requested.
- Funded training: the Seta has its budget and has to allocate funds fairly across the board. They have a committee which reviews the funding requests. So, 1st the employer needs to have all its paperwork in order and then wait for the committee’s approval. MICT seem to hold back and only grant SLA’s once they’re in their new financial year.
- If funding is granted, then a Service Level Agreement (SLA) is drawn up and is signed by the Seta CEO and then by the employer. The original must be lodged with the Seta.
- The employer then complies with the SLA:
- Internship Agreements, Fixed Employment Contracts and ID Copies
- Programme Roll-Out Plan (Programme Plan with Activities Schedule per units standard )
- Uploading learners details on MICT Seta MIS Systems
- List and details of selected learners
- The progress reports are then submitted.
- The 2nd disbursement may only follow 3 months later. The Seta is asked to arrange a site visit.
- Thereafter, various site visit forms are completed and the 2nd invoice is submitted. (20% of the SLA)
- The 3rd site visit (and subsequent disbursement) has to wait a further 3 months – invoice is at 20% again.
- The 4th site visit is 3 months after that and the final invoice is for 30%.
3. In- service training (Pivotal) : The government recognized that having placed an onus on employers to employ the recipients of the funding or not qualify for further programs, there were many young South Africans who needed exposure in order to complete their training and/or financial assistance to complete their studies. Pivotal training is specifically for the 6 month experiential training needed to complete degrees; bursaries from 2nd year onwards for formal degrees, etc. – a further proviso is that the recipient must be under the age of 35. The employer is not obliged to employ the recipients.
What about SETA / B-BBEE Claims?
We will help you structure your business to gain the most business-useful effect from the New BBBEE Codes scorecard and from the Employment Equity Act and SETA grant funding. Let us help you with:
- Skills development
- Disability and Skills development and Employment Equity
- Socio-Economic Development (SED), Corporate Social Responsibility (CSR or CSI)
- Enterprise Development, Supplier Development, Preferential Procurement
We will help you develop a strategy, implement it and prepare for and manage the statutory returns and rating process.
Who participates in a Learnership ?
A learnership involves three main parties:
- The learner/s
- The training provider/s
- The Employer/s
How do I apply for a Learnership ?
Although the SETA facilitates the recruitment and implementation of learnerships, Velisa Africa partners with employers to facilitate and enrol your future skilled staff into our programme.
Stop employing graduates who have no skills or experience. Contact Us if you are ready to get skilled, competent, and experienced staff members into your organisation!
What are the benefits of a Learnership for a student ?
For the learner, learnerships:
- Provide easy access to learning
- Increase access to employment opportunities;
- Assist in Career-Pathing and Self-developmen
- Provide a monthly stipend to learners while they learn
- Lead to the acquisition of a formal qualification
- Fast track the development of current employees; and
- Serve as an entrance into the industry for unemployed learners.
What do Learnerships provide for the employer ?
- Skilled and experienced workers;
- Development of competent staff;
- Empowerment credentials and BB-BEE points for the company; All costs are claimable towards B-BBEE scorecard targets.
- Knowledgeable and competent employees who require less supervision;
- Improved workplace productivity and quality outcomes;
- A vehicle to address employment equity targets; and
- Help fill identified skills gaps.
What deductions are available to employers for qualifying learnership agreements?
Section 12H provides an annual allowance and a completion allowance to employers that are a party to a qualifying learnership agreement with an employee. The annual allowance of R30 000 is subject to a pro rata reduction when the number of full months in a year of assessment is less than 12. The completion allowance is limited to R30 000 when the learnership is for a period of less than 24 full months. For longer agreements the completion allowance is R30 000 multiplied by the number of consecutive 12-month periods covered by the agreement. The allowances are increased to R50 000 for learnerships entered into with employees having a disability.
What is a WSP/ATR?
A Workplace Skills Plan (WSP) is a strategic document that articulates how the employer is going to address the training and development needs in the workplace. This process should be an all-inclusive one. The employer should consult with all employees or representatives, irrespective of their levels or rank in the company.
When do I need to submit my WSP/ATR?
What periods do I report on for my WSP/ATR?
The Workplace Skills Plan is an annual training plan starting from the first of April in the current year, until the end of March in the following year, e.g. 1 April 2016 – 31 March 2017.
The Annual Training Report is an annual report of training that has taken place from the First of April of the previous year, to the end of March in the current year, e.g. 1 April 2015 – 31 March 2016.
Why should I submit a WSP/ATR?
The Workplace Skills Plan serves to structure the type and amount of training for the year ahead, and is based on the skills needs of the organisation. A good WSP should consider current and future needs, taking into account gaps identified through a skills audit, the performance management system, succession planning initiatives, and any new process or technology changes planned for the year. Management discusses the company’s goals with employees who in turn commit to the process of achieving these goals. Management gets the opportunity to discover talent as well as skills that they did not know that they had.
The WSP/ATR submission provides access to the mandatory grant, as well as discretionary grants advertised by the SETA. This data provides the SETA with insight into its specific industries to better equip them to provide further development and support to its stakeholders. WSP and ATR submission also enables a company to receive points for BEE purposes.
What is an SDF?
Description Skills Development Facilitator (SDF) is a resource appointed by the employer to assist with SETA related duties. Rolls of the SDF are to compile and submit WSP and ATR information to the relevant SETA in line with the requirements of the specific SETA, as well as assist with implementation of the WSP.
Where do I submit my WSP/ATR information and what system are you using to submit your WSP/ATR?
The Services SETA makes use of the Skills Development Management System (SDMS) for electronic submission of all WSP and ATR data. The SDSM is an online system.
Do I need to be registered with a SETA to submit a WSP/ATR?
Yes and No, WSP and ATR’s need to be submitted to the SETA that your company has been registered under, however NPO, NGO or an exempted companies may submit their information via the SDMS system by allowing the system to generate a Non Levy Paying (NLP) number.
Can I report on training if a candidate is not found competent?
Yes, a company may report on any training that has taken place within the organisation regardless of the outcome, as well as internal and informal training. All training reported on will need to be able to be supported by proof of the intervention taking place.
What happens if I plan for training but it is not realised?
The Services SETA will not penalise employers for not reporting on information that was planned in a previous year. However reports need to be completed as accurately as possible.
Where do I get my SDL number from?
What is the mandatory grant percentage break down?
As legislated by the Skills Developments Levies Act, the mandatory grant is set at a maximum of 20 percent of the Skills Development Levy (1 percent of the company’s annual payroll) paid by the company, which is accessible through submission of a WSP and ATR.
I want to capture a mandatory grant application but my organization is not in the system?
If the SDMS does not recognise your SDL number and you have confirmed your registration with the Services SETA, a Non Levy Paying (NLP) number may be generated to complete the submission while the system gets updated.
What is the qualifying criterion for paying SDL?
How do I calculate Internal and external training?
External training is calculated via invoices paid for training received and needs to be supported by an invoice for the training.
Internal training may be calculated per person by the following formula:
What other supporting documents do I need to submit my WSP/ATR?
Along with invoices, the Services SETA requires the Authorisation page (obtainable via the SDMS) to be completed by the SDF and company, a cancelled check or bank verified banking details of the company, and Annexure C (obtainable via the SDMS) completed with a summary of training reported on.
How do you classify a company’s size?
Companies are classified in the following way for the SETA’s:
- Small: 1 – 49 permanent employees
- Medium: 50 – 149 permanent employees
- Large: 150+ permanent employees
Where can I go for WSP assistance?
Assistance for WSP/ATR submission is offered by the Services SETA Mandatory Grant division through workshops and one on one support, as well as the nearest Services SETA regional office. Assistance may also be found via the Services SETA website and the SDMS. Please ensure assistance is requested timeously, as there is no guarantee of response near the deadline date.
What is PIVOTAL Training and how do I report it?
PIVOTAL (Professional, Vocational, Technical and Academic Learning) is any formal training that leads to a learner achieving a full qualification, such as a certificate, diploma, Degree, etc. This training is reported in the same way as the normal training, but just marked as PIVOTAL in the WSP/ATR submission.