Taking care of your greatest asset
So your small one-man practice has grown overnight and you are faced with the prospect of becoming an employer. With this new development comes additional responsibilities, challenges as well as a number of opportunities.
Rest assured, help is at hand… It is not unusual for a thriving practice to find itself in a situation where it has grown to such an extent that the services offered can no longer be provided by a single therapist, or that the administration of the practice requires the dedicated attention of an administrator or receptionist.
As a practice owner this is your opportunity to consider how the business can be structured for further growth and look at how best to accommodate and fully utilise the additional staff you may need to employ.
This is also the ideal time to evaluate the option of outsourcing your administration services. A good team will be your greatest asset and for this reason human resource management will become more and more critical to the effective and successful running of your business.
What exactly does sound human resource management entail and what should you be looking out for? Here are some tips and guidelines, based on the legislative requirements as set out by the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA) and the Code of Good Practice.
Who is an employee?
It is important to determine the exact employment arrangements between yourself and your employees from the outset. While this may seem like a simple place to start it can have far-reaching implications for your practice. Interestingly enough, this is not determined by an employment contract, although this too is important, but rather by the predominant impression test as set out by the Labour Relations Act and the Code of Good Practice.
Does your staff member fulfil one or more of the following?
- Did the employee work more than an average of 40 hours per month over the past three months?
- Does the staff member work under your control or direction?
- Are their working hours under your control?
- Are they part of your organisation?
- Are they economically dependent on you?
- Do you provide them with tools of the trade or equipment?
- Are you the only one to whom they are rendering a service?
The answers to the above will determine if there is an employment relationship under the Code of Good Practice. Even if the employee earns more than the threshold of R205 433.30 per annum, or R17 119.41 gross per month (according to the 2015 determination), the CCMA will still use the dominant impression test to determine the relationship and the nature thereof.
Locum staff and commission-based salaries
If a staff member is paid on a commission basis, the only difference will be that no UIF is payable on the commission portion of the salary. Where no UIF is paid, it is important for the staff member to be made aware of the fact that in the event that they become unemployed, or go on maternity leave, they will not be covered by UIF for the commission portion of their salary.
Other than the UIF regulation, there is no difference to the employment rights and entitlements that commission- based salary staff members have when compared with fixed-salaried staff.
Locums who work more than 24 hours a month, and are able to demonstrate an employment relationship in accordance with the above, are often not afforded annual leave (minimum of 15 days per year), sick leave (30 days in a three year cycle) and family responsibility leave benefits (three days per year). It is important to note that these individuals may be entitled to these benefits, however, and that withholding them may be in contravention of the relevant labour laws.
Should you, for example, pay a staff member on a commission, or per patient rate basis, rather than a fixed salary, they may be entitled to paid annual leave, sick leave as well as family responsibility leave. This can be calculated using the average of the past three months’ gross salary.
Should a staff member not have a signed employment contract please remember that they will then automatically default to the BCEA entitlements, and that they therefore cannot be denied benefits on this basis.
It is therefore highly advisable to develop an employment contract and job description for all staff members. Should there be an existing employment contract, or an existing employment relationship without a contract, this will need to be arranged by mutual agreement. It is always a good idea to set this up and sign an employment agreement before the commencement of employment.
What if I employ five or more staff members?
Should you employ five or more staff members, please note the following requirements of the employer as per the BCEA:
1. You need to display a statement of the employees’ rights in all of the official languages that are spoken in the practice, and in a place where all staff will be able to read it. It is recommended that you obtain a summary of the BCEA from the Government printers and place this in a staff pause area where all employees have access to it.
2. Please ensure that all employees are provided with a monthly payslip, containing the following information:
a. The employer’s name and address;
b. The employee’s name and occupation;
c. The period for which the payment is made;
d. The employee’s remuneration in monetary terms;
e. The amount and purpose of any deduction made from the remuneration;
f. The actual amount paid to the employee; and
g. If relevant to the calculation of that employee’s remuneration:
i. The employee’s rate of remuneration and overtime rate;
ii. The number of ordinary and overtime hours worked by the employee during the period for which the payment is being made;
iii. The number of hours worked by the employee on a Sunday or public holiday during that period; and
iv. If an agreement on average working time has been concluded in terms of section 12, the total number of ordinary and overtime hours worked by the employee in the period of averaging.
What if my employee earns more than the threshold?
If an employee earns more than the threshold of R205 433.30 gross salary per annum (2015 rate), he/she is excluded from sections 9, 10, 11, 12, 14, 15, 17(2) and 18(3) of the BCEA.
These sections cover:
- Hours of work;
- Compressed working hours;
- Averaging of hours of work;
- Meal intervals;
- Daily and weekly rest periods; and
- Night work and public holidays.
What this means is that if these employees are earning over the threshold, it is assumed that they play a more senior or management role in the business, and they can therefore not seek protection from the BCEA regarding hours of work, claiming for overtime etc. It is therefore critical that these aspects are comprehensively addressed within the employment contract.