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FAQ’s Part 2

I only earn variable pay/commission, how will my employer calculate my income in terms of the Long-Term Insurance Act, No 52 of 1998 (LTIA) during this lockdown?

It varies from company to company but seems that the most popular method is to use the calculation of averaging the commission earned based on the last three months prior to the lockdown.  It is important to consider the definition of Remuneration and considerations that are regulated by the Regulations Under the LTIA (in this regard see Reg 3.2 (4A) of the Act).

I work for an insurance company. I subsidise my own leave; but during this lockdown my annual leave days ran out what can I do?

You can by agreement with your employer, either request unpaid leave or apply for negative leave days.  Some employers have already indicated that they will not accept negative leave days. There is the UIF alternative for unpaid leave.

Do the OHSA and COIDA apply in the current lockdown of COVID -19? 

S8(1) of the OHSA refers to the general duties of employers with special reference to “reasonably practicable”.

“Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.”

Besides the OHSA, Covid-19 was declared a “compensable occupational disease” in terms of COIDA Notice 193 of 2020.

COIDA provides for specific reporting time frames for the reporting occupational diseases and so also further for certain presumptions.

Depending on the wording contained in a policy, a claimant must prove causality in that the employee contracted Covid-19 within the workplace further that the contraction of Covid-19 was as a result of the employer’s negligence or intent.

My employer wants us to take a holiday contribution in respect of all our retirements funds, is that permitted?

FSCA in a Press Release on 27 March 2020 issued guidance to retirement funds industry to respond to COVID-19 risk. 

This note addresses how COVID-19 may impact employers’ and employees’ ability to comply with the full, partial or even any payment of contributions in terms of section 13A of the PFA. Most funds have existing relevant rules for distressed employers and members and the FSCA encourages them to apply these rules to alleviate the financial difficulties they may be facing. Some of the rules include:

  • A provision for temporary absence from work (with or without pay);
  • A break in service (in instances where employees are not working);
  • A postponement of contribution payments; and/or
  • A reduction of pensionable service (in respect of employees who are working reduced hours).

For funds that do not have these or analogous rules, they are requested to submit such relevant rule amendments to the FSCA urgently. This includes both Pension Funds and Provident Funds as defined in the Income Tax Act, no. 58 of 1962. Funds are advised to indicate the effective date for these amendments agreed to by funds and employers. Given the current circumstances, funds will only receive a letter and an unstamped version of the rule amendment from the FSCA. Funds will receive the stamped version of the rule amendment once business resumes as usual.

Wil the Union encourage the employer to take a holiday contribution?

The Union may not give advice as it is not a registered Financial Services Provider as described in the FAIS Act.

Are we permitted to take a holiday contribution on our full-risk benefits like Group Life Assurance?

FSCA Communication 11 Of 2020 (Rf) Covid-19: Section 13a of the Pension Funds Act, 1956 And Financially Distressed Employers and Employees – Submission of Urgent Rule Amendments dated 26 March 2020 at Clause 3.4 of the notice, the FSCA advised that funds must attempt to ensure that full risk benefit premiums (to the extent applicable) continue to be paid in full by participating employers to ensure that risk benefits will be provided. Therefore, funds must attempt to ensure that participating employees continue to pay their full risk-benefit premiums where applicable to ensure that risk benefits such as death and ill-health benefits will be provided.

My company suggested that a reduced contribution be made to the retirement funds?  Will that include both the employer and employee’s contribution?

To align with the wording of S13A of the PFA, it may include both the contributions of the employers and the employee.

Section 13A (1) of the PFA provides that:

“Notwithstanding any provision in the rules of a registered fund to the contrary, the employer of any member of such a fund shall pay the following to the fund in full, namely-

(a) any contribution which, in terms of the rules of the fund, is to be deducted from the member’s remuneration; and

(b) any contribution for which the employer is liable in terms of those rules.”

My employer asked the administrators to suspend our retirement fund contributions, can I claim the loss from the fund and/or my employer should my employment be terminated for whatsoever reason?

The Rules of a registered fund are registered with the FSCA. It may be difficult to lodge a legal claim against any registered pension fund or provident fund, in the event where the overarching governing body, i.e., the FSCA is has the required jurisdiction to publish notices for the amendments to the Rules of any registered pension fund due to a force majeure.

What are the tax implications of any such reduction or suspension?

Clause 5 of the FSCA Communication 11 of 2020 (Rf) Covid-19: Section 13A of the Pension Funds Act, 1956 And Financially Distressed Employers and Employees – Submission of Urgent Rule Amendments dated 26 March 2020 states that the FSCA has consulted with the SARS in respect of the tax implications for retirement funds in the event of the reduction or cessation of employer and member contributions by an employer or participating employer. SARS has advised that it will not jeopardise the income tax approval status of the retirement fund concerned.

My employer reduced my hours of work during the lockdown can the employer also reduce my salary and all contributions made to other social benefit funds accordingly?

This will depend on the rules of your fund whether or not contributions must be maintained at your full pensionable salary, or must it be paid at the rate of your lower salary – with potential implications for your risk benefits – and whether or not your employee contribution is payable.

If these rules did change to adjust to a lower contribution due to a lower income, the employer must advise staff at least 30 days in advance. It is important to note that funds will be required to inform affected members of their employer’s request to reduce or suspend fund contributions, as well as the proposed rule amendment to that effect (if necessary), within 30 days of receipt of the employer’s request.

Has there been any Corona Virus claims to date?

Yes, two in United States of America, the first one is the securities class action suit filed against Inovio Pharmaceuticals where the company’s Chief Executive Officer announced that the company developed a vaccine for COVID-19. Citron Research called Inovio’s claims into question and the stock price fell on this news. The second coronavirus-related securities class action suit filed was filed against Norwegian Cruise Lines for make false and misleading comments regarding the Virus. Their stocks also fell.

List of abbreviations:

COIDA shall mean the Compensation for Occupational Injuries and Diseases Act, 130 of 1993

FAIS Act shall mean the Financial Advisory and Intermediary Services Act, No 37 of 2002

FSCA shall mean the Financial Sector Conduct Authority

LTIA shall mean the Long-Term Insurance Act, No 52 of 1998

OHSA shall mean the Occupational Health and Safety Act, No 85 of 1993

PFA shall mean the Pension Funds Act, No 24 of 1956 

SARS shall mean South African Revenue Service

UIF shall mean the Unemployment Insurance Fund

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FAQs Banks COVID19

ABSA

It is unfair for some employees to stay at home without having to take annual leave whilst others have to work.

The Union realises that there is a degree of unfairness towards those members that have to go to work whilst others can stay at home as a result of the lock down. The Union is of the view that all employees should enjoy equal treatment and has consequently engaged the bank in order to ensure that those employees that are going to work during the lock down period get rewarded. The form of the reward has not been determined as yet. The principles of fairness would, however, support a form of reward that is equal to what people enjoyed whom were not required to go to work.

Members that have taken annual leave are asking why their leave can’t be cancelled because others can be at home without having to take annual leave

Annual leave requires an employer’s approval upon application by the employee. The approval, once granted, constitutes an agreement which cannot unilaterally be cancelled by the employee. The employee will have to convince the bank that cancellation of the annual leave is “the right thing to do“.

The Union requested the bank to consider cancelling the regular scheduled annual leave of people since they do not have the freedom of movement that is incidental to annual leave. Annual leave is not just about not being at work, it is about being able to do whatever you want and not having to be at work.

In summary, the agreement of the employer still needs to be obtained irrespective of the restrictions of movement that the lock down regulations have placed on people and that prevents a person from using his/her annual leave to its full extend.

This question is dealt with comprehensively under the Legal FAQs section explaining the legal principle, implications and the impact of current legislation.

Can a person be recalled to come to work after having been able to work from home or after having been released to go home but remain on stand-by

Yes, but only if the employee is categorised as an essential worker and if it is indeed necessary for the employee to be at work.

See also the explanation of what an ‘essential worker’ is in the Legal FAQs section.

The Union is constantly engaging the employer on an individual basis in regards to the necessity to have specific employees at work. Please contact your Union Representative if you believe that you should not be an essential worker or if you believe that you should work remotely.

NEDBANK

Will Nedbank assist with transport during this lockdown period?

Employees are encouraged to engage management in instances where they may require transport. The bank has committed to assisting employees where possible. According to the Bank, public transport requests can be arranged for essential services staff members that are required to report to a Nedbank place of work. The staff member should engage with their line manager and provide details to facilitate transport between their place of work and home including home address and schedules of daily pick up and drop off times. Where it is possible, arrangements to assist staff members will be made. For staff members in these circumstances, social distancing will be adhered to during the transportation trip. Booking for the public transport should be done via the Travel Desk and approval should be provided by the line manager.

Will Nedbank ensure my safety while working during this period?

Yes, Nedbank takes your safety seriously hence they deep cleaned branches and departments and gloves and sanitizers have been delivered to branches. Social distancing must be observed. Should it be that your place of work has not been provided with the requisite items to ensure the safety of employees or your branch or campus has not been deep cleaned, then please raise this with management. In the event that management are unable to assist you then please feel free to communicate this to the Union. Sasbo will bring to the Bank’s attention instances where some branches have not been attended to, i.e., Meyersdal and Hazyview.

Will I be granted leave if I have chronic illness or pregnant?

If you suffer from a chronic illness the bank will grant employees special leave. The employees must provide sufficient medical information to support any request who believe that they require special leave. If you are pregnant and you have not commenced with maternity leave as yet then you should also be considered a vulnerable employee; based on the statutory requirements of the provisions of section 26(1) of the Basic Conditions of Employment Act, 75 of 1997 which prohibits employers from requiring or permitting pregnant- or breast-feeding employees to perform work that is hazardous to the health of the employee or that of her child.

STANDARD BANK

Why is the bank not providing gloves and masks?

Despite the medical and health professions announcement that gloves and masks are not so efficient, the bank has on a large-scale commenced with the distribution of gloves and masks to staff members who are directly in contact with the public and who handle cash. We still want to emphasis that it is imperative that you continue with the golden rules of washing your hands, using sanitisers and keeping a safe distance as they are the most effective risk health precautionary measures.

I have no transport available what must I do?

Contact your HR or manager in this regard. The bank will provide transport but only at certain pick-up points. Staff are also encouraged to make use of lift clubs or use pool vehicles, if available.

I cannot even get to the pick-up points, how am I going to get to work?

Speak to your manager to seek solutions in order to arrange for alternative transport. The use of Uber services might be a practical solution.

I think I am a vulnerable person and should not be working?

In this regard you can contact Employee Wellbeing on 011 380 6862 or email them at employeewellbeing@standardbank.co.za.

I do not believe that my job should be classified as an “essential finance service”. What can I do?

First speak to your manager or HCBP (HR) and if you are not satisfied, you can approach either Funeka Montjane or Kabelo Makeke who both indicated that they are comfortable if staff contact them directly. You can send an email to either of them directly and explain why you believe that your position does not qualify as an essential finance service.

FNB

We have not received any protection equipment, i.e., hand sanitisers, gloves and/or masks what must we do as our health and safety are at risk?

FNB has responded to our email and assured us that although the Bank has struggled to obtain stock, it has reassured the Union that it has now sufficient stock and all branches will be provided with masks. We have been advised that the bank intends to roll out “permanent” type face visors to all client-facing employees.

What should I do if my branch closes at 11h00 and there is no public transport?

You must approach your manager to assist you in arranging transport. No employee should be left without transport. The Regulation Gazette No 11062 dated 25 March 2020 at S 11C makes it clear that the employer MUST make the necessary arrangements for transport if you have been declared an essential finance service employee

Must we be concerned about our job security as a result of the lock down?

The Bank have assured the Union that it is not their intention to retrench employees as a result of the lock down. In any event, before the Bank can embark on any operational requirement exercise with the intention to dismiss, the Bank is compelled to comply with the provisions of the Labour Relations Act, 66 of 1995 and that includes consultations and engagements with the Union.

My manager said I must stay at home and that my annual leave will be used, can my manager do that?

If you have been identified as an employee who does not need to come to the workplace, your leave will be logged as leave no action. Please see the Bank Policy related to Leave. An addition was made to the Policy that deals specifically with leave under these circumstances.

I have been told to come to work but I do not feel my job is an essential service job, what can I do?

The Bank has identified certain roles as essential and others that are not. There are certain roles, e.g. outbound sales that will continue only for employees who are able to work from home. Employees in the office will thus only deal with sales that come off the back of a customer calling in.

I was on annual leave when the lock down started. I feel it is unfair that I should be using my annual leave when others are staying at home as well.

This question is dealt with comprehensively under the Legal FAQs section explaining the legal principle, implications and the impact of current legislation; however, the Union has, requested the bank to consider cancelling the regular scheduled annual leave of people since they do not have the freedom of movement that is incidental to annual leave.

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FAQs Legal COVID19

What does “essential services” mean in terms of the Labour Relations Act, 66 of 1995?

In terms of S 65(1)(d)(i) read with S 213 of the Labour Relations Act, 66 of 1995 (“LRA”), employees who work in a designated essential service may not strike in order to ensure that the life, personal safety or health of the whole or part of the population is not endangered. In such cases the employer must determine a minimum service agreement allowing only a smaller number of employees to maintain minimum service.

Can all the functions in an institution be classified as an essential service?

Yes, S 71 of the LRA provides that the essential services committee may designate the whole or a part of a service is an essential service. However, there are instances where only a part of the business or functions are considered to be essential. The Constitutional Court upheld an application of appeal in favour of the union where in the Labour Appeal Court the SAPS argued that all services of the SAPS, whether carried out by SAPS Act employees or PSA employees, are essential. It was also argued that PSA employees perform an essential service in the SAPS and should also be prohibited from striking. The court ruled that only members of the South African Police Service (SAPS) employed under the South African Police Service Act (SAPS Act) are engaged in essential services as contemplated in sections 65(1) and 71(10) of the Labour Relations Act (LRA). The LAC held that the SAPS’s employees employed under the Public Service Act (PSA) constituted non-member employees and rendered non-essential services. The importance of this determination was that public sector employees not engaged in an essential service were permitted to strike.

Is the banking sector also identified as an essential service as per the Labour Relations Act, 66 of 1995?

Regulations issued in terms of the Disaster Management Act, 57 of 2002 temporary declared: “Financial services necessary to maintain the functioning of the banking and payments environment, including the JSE and similar exchanges, as well as Insurance services” as essential service. This declaration is temporary as from 26 March 2020 – 16 April 2020 or a date determined by Cabinet). Financial services are exempted from locking down but only for the purpose of the definition, i.e., to ensure that the life, personal safety or health of the whole or part of the population is not endangered. Under normal circumstances the finance sector is not an essential service and the employees may embark on a strike after all the procedures have been followed.

If I need to commute for the purpose to render an essential service, can the employer take disciplinary action against me for failing to report for duty due to no transport being available?

No, because according to Regulation 398 of G.G. No. 43148 the employer must in terms of S 11C make the necessary transport arrangements. There is however a duty on you to inform your employer timeously if you experience transport problems.

My employer said I must work from home, what happens if I am injured at home?

The COIDA states when an accident or an illness can be linked to the working conditions, employees have the right to claim compensation from the Compensation Fund. In order to claim for an injury, you must be able to prove that you have been injured whilst you were employed. Note that the test to prove the nexis or link between your duties as an employee and the injury is very stringent.

When will the COID commissioner pay?

The employer will not pay for your IOD if you are off less than 3 days but the employers must pay 75% of the wages or salary of the injured employee for the first three months after the injury on duty. The amount is refundable by the Compensation Commissioner. Once the 3 months period expires, the injured employee must claim his/her money from the Compensation Fund.

I work from home; can my employer hold a disciplinary hearing during this lockdown?

The current date for the lockdown has been set 26 March at 24:00 to 16 April 2020 at 24:00 or a date determined by Cabinet. The employer may not hold a formal disciplinary hearing during this period as there may be logistical problem to get all the parties together; however, nothing prevents the employer so start setting the wheels in motion by completing all the required administration paperwork. The employer must be fair and allow the employee, after the lockdown, sufficient time to at least prepare his/her case.

I want to lodge a grievance can I do it during the lockdown period?

Yes, you may. However, one must take into consideration the fact that grievance steps are time bound and whether it is practical to contact all parties involved in this grievance in order to allow the investigator/chairperson to make an informed decision.

Can the employer serve a S 189 letter on me to start with retrenchment proceedings during this lockdown?

Yes, however the employer might not be able to commence with the joint consensus seeking consultations during the lockdown period. Time period in terms of S189 and 189A starts running once you have received a S 189(3) letter. Accordingly, the employer may not be able to comply with the stipulated time procedures.

I applied for annual leave and it was approved. Can my employer convert my annual leave to special leave?

The Disaster Management Act, No. 57 of 2002 takes first preference at this moment and it is not intended to establish or create new rights, entitlements or obligations for employers and/or employees. The intention is that the objects of this Act may not be compromised in any way and that nobody may benefit at the cost of others. Therefore, the employer is not duty bound to convert or amend an employee’s terms and conditions of employment during this period unless the employer has engaged with the employee/Union in respect of such amendments. Once the lock down has been uplifted and everything has normalised, it will then be appropriate for the Union to engage with the employer in order to discuss, negotiate, consider and re-align any form of preferential treatment that resulted in the possible misallocation of benefits due to the lock down. In fact, this will place the Union in a better position to quantify and qualify any shortcomings or unfair treatment that employees may have suffered as result of this lock down.
Can I still refer my unfair dismissal to the CCMA during the lock down?

Yes, although the services of the CCMA have been suspended, it did not impact on the period or time to refer a dispute to the CCMA. Remember it is 30 days from the date of dismissal or termination of services and 90 days from the date when you became aware of the unfair labour practice.

My position has been identified as an essential banking service but If I refuse to go to work can the employer act against me?

Yes, the employer may. If your position has justifiably been declared as an essential banking service as per the Government Gazette, if you are not pregnant, have a weakened immune system or medical conditions like chronic bronchitis, emphysema, high blood pressure, heart disease, lung disease, cancer, or diabetes or you have been in contact with other individuals who may have or could have the virus, then you have to report for duty.

Can I refuse to undergo a medical test?

No, the Disaster Management Act, No. 57 of 2002 and all applicable Government Gazettes and Regulations applicable now trump any other legislation which means that individuals’ constitutional rights can be limited or impinged upon especially if it adversely affects the objectives of the Act.

What about FAIS exams?

All Regulatory Examinations with a deadline for 2020 will be extended to a deadline of 15 December 2020. All exams scheduled between 26 March 2020 and 16 April 2020 have been suspended. For postponements of examinations candidates may postpone their examinations. Postponements will not attract any penalties or additional fees.

What about FAIS qualifications?

All qualification deadlines that were due for completion during 2020 will be extended to a deadline date of 15 December 2020. This date will be subject to review.

What about product specific training?

As there are no deadlines linked to product specific training, no extensions are necessary. However, representatives may not render financial services if they have not received training on the products they render financial services against.

What about the 2019/2020 CPD (Continuous Professional Development) cycle?

Due to the cancellation of many CPD activities in March and April, FSPs, key individuals and representatives are granted an additional 3 months (until 31 August 2020) to meet the CPD requirements for this cycle.

What about the 2020/2021 CPD cycle?

The CPD requirement for this cycle will start on 1 September 2020 and ends on 31 May 20221. The CPD hours for this cycle will be calculated on a pro rat basis, i.e., calculated for 9 months instead of 12 months and will be prorate within 3 months.

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