What is the tax payable on tips or other gratuities from clients to waitrons?

Restaurants are often confronted with the moral dilemma of whether their staff who serve clients are liable for paying tax on the tips or gratuities they receive from clients.

The tax treatment of tips paid by patrons to waitrons has been clarified by SARS in an Interpretation Note. The establishment/employer is merely holding the funds for the waitron/employee and performing a distribution role for the customer/patron.

Accordingly, under these conditions, the employer would not constitute an ‘employer’ as defined for the purposes of Employees Tax in relation to the tip or gratuity. PAYE would therefore not be deducted from the tip or gratuity by the establishment/employer.

It is important that waitrons understand that the income they received “directly” from a patron or from the establishment/employer where they are acting as a conduit for the distribution of the tips, that these tips must be included in the recipient’s (the waitron) ‘gross income’.

This means that the onus is on waitrons and other restaurant employees to declare the total amount of tips or gratuities received to SARS when completing their annual tax returns.

It is our recommendation that restaurants must have a policy and an acknowledgement by their waitrons that they understand this obligation and act responsibly when submitting their personal Income Tax returns.

COVID Regulations – Requirements to submit data to National Institute of Occupational Health (NIOH)

The Department of Health has published directives which requires companies who employ more than 50 employees to submit information on a weekly basis via a special portal.

The information that is required on a weekly basis is the following, and is quoted directly from the directive issued which can be accessed here Government_Gazette.

  1. Vulnerable Worker Data:

All employers are legally required to identify those employees who are vulnerable for the more severe outcomes of the COVID-19 infection. Since this is a key component of the screening of workers, this data must be submitted by employers.

The vulnerability status of each worker that is submitted is not dependent on the availability of detailed medical information being available to the employer. This once off submission is submitted when collected by the workplace, and any subsequent occasion when new appointments are made, or an employee’s status requires updating.

  1. Daily Symptom Screening Data:

All employers are legally required to screen all employees entering their work premises daily. This screening must be based on the prescribed set of symptoms as has been defined by the National Institute of Communicable Diseases to determine those persons likely to be presenting with a COVID-19 infection, and therefore should be referred for further assessment.

This daily collected data must be submitted by employers, for those employees that are symptomatic. The data must be submitted on a weekly basis should there be symptomatic workers recorded during the calendar week. The submissions should occur before Tuesday for the previous calendar week commencing on Sunday.

  1. COVID-19 Testing Data:

Based on their daily symptom screening, or on their employees’ presentation to their health provider, employees are referred to health providers / health laboratories for testing for the presence of the COVID-19 virus.

In terms of managing the pandemic in the workplace, the employer is expected to be notified of the results of the tests. The results of the laboratory tests of all employees who test positive must be submitted by employers, upon receiving the results of such tests.

This submission occurs only when an employee tests positive for COVID-19 and should be submitted on a weekly basis should there be positive workers identified during the calendar week.

  1. High exposure risk Workplace Contact – tracing:

When an employee tests positive within the workplace, all those in contact must, as per the Department of Employment and Labour Direction, be assessed for a high risk or low risk of exposure.

A high risk of exposure is defined as being in proximity (<1.5m) for a prolonged period of time (>15 minutes) without the use of personal protective equipment and/or a face mask. Those employees with such a high risk of exposure are expected to be placed in quarantine.

  1. The total numbers of employees placed in quarantine:

Details on high exposure workers should be submitted on a weekly basis should there be positive worker/s identified during the calendar week.

  1. Post infection outcome and Return to Work Data:

Recovery from the infection will vary based on vulnerability and other risk factors. Understanding the outcomes of the infection among employees provides critical information.

All employers who indicate employees have tested positive must submit information about the outcome of the infection, and the return-to-work decision. No confidential clinical information is required. This data must be submitted once only when the employee returns to work.

Submission process?

Employers must access this link: https://www.nioh.ac.za/home/national-resources-directives-guidelines

Important: In collecting this information from their employees, employers are obliged to inform employees about the submission of this data to the Department.

The National Institute of Occupational Health (NIOH), is the statutory entity designated by the Department of Health for the collection, analyses and reporting of the data from workplaces.

This clause does not remove the legal obligations by employers to report COVID 19 related information to specific government Departments (Department of Employment and Labour, Department of Public Service and Administration and Department of Mineral Resources and Energy, Department of Trade, Industry and Competition etc.).

It is recommended that all the data be submitted in electronic format. In instances where employers are already using electronic applications, they can submit data to the NIOH data either through CSV data files and/or secure API transfer.

Mauritius – Contribution Sociale Généralisée replacing National Pension Fund

(Source: crs.co.za)

The Contribution Sociale Généralisée (CSG) Regulations 2020:

Regulations made by the Minister under section 30F of the National Pensions Act were published in Government Notice No. 214 of 2020. As from 1 September 2020, the National Pension Fund is being abolished and replaced by a new system, the Contribution Sociale Généralisée (CSG), a progressive contribution system.

Under the CSG, employers are required to deduct, where applicable, the employee’s contribution from his/her wage or salary and pay that contribution, together with the employer’s contribution, to the Mauritius Revenue Authority (MRA). The rate of contribution applicable to the private sector is shown below.

Basic wage or salary means:

  • Where the terms and conditions of employment of the employee are governed by Remuneration Regulations or Wages Regulations, an arbitral award or an agreement, the basic wage or salary prescribed, or where the employer pays a higher wage or salary, the higher wage or salary paid, excluding any allowance by any name and whether paid in cash or in kind.
  • In any other case, all the emoluments received by the employee, excluding any bonus or overtime.

The monthly return and payment of CSG with respect to a month is required to be made electronically on or before the end of the following month.

An exception was made by the MRA for the month of September 2020.  The last date for submission of the return and payment of CSG to the MRA is 30 November 2020.

Facilities for the electronic submission of CSG returns are available on the MRA website. Employers must use the same employer registration number (ERN) and password applicable for the submission of NPF return.

Egypt – Temporary Solidarity Payment

(Source: crs.co.za)

New law approved to introduce a temporary solidarity contribution.

A new law, Law No. 170 of 2020, was approved and issued in the official gazette on 13 August 2020. It took effect on 14 August and will be applicable for a period of 12 months. This law provides for the deduction of a monetary amount from employees to support the country in dealing with the impact of pandemics and natural disasters.

The law applies to all employees in the private and the public sectors, as well as chairpersons and board members of all public and private entities, whether the relevant employee or person occupies a permanent or temporary position, or acts as an expert, consultant or in any other capacity.

The contribution rates are as follows:

  • 1% from the net income of active employees
  • 0.5% from the net pension of retired employees

The contribution will be based on both fixed and variable salary elements (including allowances, commissions, incentives, bonuses, overtime payments) after payment of payroll taxes and social insurance contributions.

Active employees with a monthly net income of EGP 2,000 or less and retired employees with a monthly net pension of EGP 2,000 or less are excluded from contributing.

The contributions must be paid into a bank account set up by the Ministry of Finance.

Malawi/Zambia/Mauritius – recent legislation changes

(Source: crs.co.za)

Malawi PAYE changes

With reference to the Provisional Budget Statement for Malawi 2020/2021 and an announcement made by the Finance Minister on 11 September 2020, the Malawi Government has proposed an increase in the PAYE tax-free bracket.

Conflicting information has been published regarding the increase. Upon enquiry, the Malawi Revenue Authority confirmed the increase of the tax-free bracket from MK45,000 to MK100,000 per month, effective 1 October 2020.

Kindly note that a government gazette confirming the changes is not yet available and the changes are subject to approval.

The Minister also announced that the middle tax bracket of 15% has been removed. He is quoted as stating: “Government is aware that this adjustment is huge and to minimise its impact on the base for Personal Income Tax, the 15% middle bracket under the Pay As You Earn regime has been removed.”

This was not mentioned in the Provisional Budget Statement or the Budget Statement, therefore it cannot be confirmed.

 

Mauritius Training Levy

The Finance (Miscellaneous Provisions) Act 2020 (Act 7 of 2020) was published in a Legal Supplement in August 2020. The Legal Supplement includes amendments to various Acts, such as the Income Tax Act and the National Pensions Act. Amendments to the Income Tax Act describes the changes to the Solidarity Levy, while the National Pensions Act was amended to include the new Contribution Sociale Genéralisée (CSG).

In addition, the Human Resource Development Act was amended to announce changes to the National Training Fund levies.

Previously, every employer was required to pay a training levy at the rate of 1.5% of the total basic wage or salary of its employees. For the period July 2019 to June 2020, an employer was required to pay the levy at the rate of 1% for employees whose total basic wage or salary did not exceed Rs 10,000.

As from 1 July 2020 to 30 June 2021, every employer must pay a training levy of 1% in respect of every employee.

 

Mauritius Portable Retirement Gratuity Fund (PRGF)

On 3 September 2020 the Ministry of Labour, Human Resource Development and Training circulated communication regarding the further postponement of the PRGF.

The obligation to submit monthly PRGF returns and make payment of contribution has been postponed to January 2022. Employers may opt to file the monthly PRGF return and make payment of PRGF.

However, as a result of the negative impact of COVID-19, employers may, during the period 1 January 2020 to 31 December 2021, in the event of justified dismissal or resignation of an employee, pay directly to the employee, with his consent, the PRGF amount due to the MRA.

Employers have a legal obligation to submit an exit statement to MRA in respect of that employee. The Ministry of Social Security will thereafter notify the employer of the amount of PRGF to be paid in respect of past services of that employee.

 

Mauritius CSG, NSF and Training Levy

The Mauritius Revenue Authority (MRA) has published a notice to inform employers that, following the introduction of the Contribution Sociale Généralisée (CSG), the deadline for the submission of the monthly contribution return and payment of contributions for the month of September 2020 is Monday, 30 November 2020.

The monthly contribution return includes contributions in respect of the following:

  • Contribution Sociale Généralisée (CSG);
  • National Savings Funds (NSF); and
  • Training Levy.

The deadline for the submission of the monthly contribution return for any subsequent month is the end of the following month.

The facility for the submission of the monthly contribution return and payment of the contributions is available on MRA’s website, www.mra.mu  and through the Mauritius Network Services (MNS).

Employers are informed that the facility to file the joint PAYE/Contribution Return for the month of September 2020 and onwards will continue to be available on MRA’s website.

No penalty and interest will be applicable for late payment of PAYE for the month of September 2020 where the return is submitted and payment is made on or before Monday, 30 November 2020.

 

Zambia 2020/2021 Budget Speech

On 25 September 2020 the Zambian Minister of Finance delivered the 2021 budget to the National Assembly with the theme “Stimulate Economic Recovery and Build Resilience to Safeguard Livelihoods and Protect the Vulnerable”.

Proposals made affecting employers/employees are:

  • An increase in the annual tax exemption threshold for PAYE was proposed from K36,000 to K48,000 and the adjustment of tax bands.

The proposed measure is aimed at increasing taxpayers’ disposable income.

  • Reference interest rate applicable on employee loan interest benefit.

The Minister proposes to adjust the reference interest rate to be used in the determination of tax applicable on employee loan interest benefits to be the Bank of Zambia policy rate plus a margin of 2.0%.

This will allow for uniformity of interest rates used for assessment of the loan benefit.

To read the full text of the Budget Speech, follow the link.

Constitutional Court Ruling – Domestic workers should get COID

The Constitutional Court have now ruled that it is unfair for domestic workers to be excluded from the Compensation Fund for occupational injuries and disease. This is not unexpected and will be welcomed by employees in this sector.

The biggest challenges will be working out how this will operate in practice given how dysfunctional the Compensation Fund is already (It struggles to cope with existing employers let alone another 5 million employers); and how the increased compliance risk and cost might impact employment in this space.

The case that sparked the ruling involved a domestic worker who was partially blind and while cleaning windows, fell off a ladder into a swimming pool and drowned. This unfortunate incident highlighted areas of potential risk for injury in a home and the consequences of an informal domestic arrangement which left the survivors of this domestic worker with no funds or recourse as a result of dangerous or undesirable workplace practice.

The next step will be for the legislation changes to be promulgated. A big concern will then be that without any guidance form the Compensation Fund (very unlikely this will be forthcoming), this will require all domestic employers to get registered which is time consuming and expensive and it is unclear what category they should be registered in. It will then require domestic employers to submit an annual return of earnings. Together these steps will cost a couple of thousand Rand so we expect many employers to be non-compliant in the short term which will raise civil claim risks for them.

HRTorQue offers a domestic payroll option to make sure employers are compliant in this space. Contact us for more information.

ETI – extra COVID claims lost if not made before the 31 August 2020 recon cycle

Editor’s note: We ran a number of articles in the past few months about the challenges with the Disaster Management Tax Relief Bill, the calculation of ETI and how payroll systems had struggled to keep up. We also warned about the perils of getting this wrong. In practice, it looks like many of our fears have been realised. For help with ETI, please feel free to contact us.

The various releases of the Disaster Management Tax Relief Bill (DMTR Bill) put the enhanced ETI relief measures into effect for April, May, June, and July 2020. The first DMTR Bill was published on 1 April 2020 and was deemed to be effective from the same date, followed by the DMTR Bills published on 1 May and 19 May.  As far as the ETI changes are concerned, the provisions were made effective in part retrospectively to 1 April, and the balance of the changes to 1 May.

This very short timeframe, the complexity of the changes, and particularly the changes made in May that were implemented retrospectively to 1 April, put huge pressure on the shoulders of payroll suppliers and employers.  This was drawn to the attention of the authorities by the PAGSA at the time.

Employers have asked whether concessions will be granted by SARS to prevent the loss of claims where either their systems or internal processes mean the employers haven’t claimed them in time for the August 2020 EMP501 filing season.

Unfortunately, as expected, there will be no ability to claim this ETI as the legislation doesn’t allow for SARS to make a concession in this regard.

 

Legislation:

Section 9 of the Employment Tax Incentive Act provides for the roll-over of ETI totals from month to month where this was either more than the PAYE liability for the month or that were not claimed in an earlier month when the ETI was available to be claimed.

Section  9(2) allows any  excess  or  unclaimed  ETI to be rolled  forward  in months  during  which an employer  is  not  tax-compliant (i.e. the employer has not submitted returns required by any tax Act administered by SARS, or has not paid the taxes due as required by any tax Act).

Section 9(4) states that ETI totals can only be rolled forward during the 6-month tax certificate submission cycle (March to August, and September to February). Any ETI that has not been claimed at the end of the last month of each 6-month cycle (31 August and 28/29 February) is forfeited (“deemed to be nil”).

No changes were made by the DMTR Bill to sections 9(2) and 9(4) of the ETI Act.

 

SARS Feedback

SARS have confirmed that the above summary of ETI Act sections 9(2) and (4) is correct – all excess ETI claims that were not made via the EMP201 process by 31 August, are forfeited.

Further,  the ETI  Act  does  not allow  the  SARS  Commissioner to consider requests  to  allow increased ETI  claims  to  be made  after the  6-month  tax  certificate  submission  cycle  has  ended (31  August  and  28/29  February),  even  under  the difficult circumstances of the ETI relief period of April, May, June, and July 2020.

The SARS eFiling and [email protected] systems are aligned with section 9 and will not allow the ETI totals on the EMP501 to be increased.

However, the ETI totals on the EMP501 can be reduced, thereby increasing the PAYE liability retrospectively from the amounts declared on the EMP201 in the previous 6 months.    Penalties and interest will then be calculated on the increased PAYE liability and shown on the employer’s statement of account.

If the employer so wishes, a ‘Request for Remission’ process can be made by the employer to motivate a concession on the penalties in terms of section 218 of the Tax Administration Act. If the employer follows this route, it is best to make use of the services of a competent tax practitioner who has experience of the SARS dispute processes.

Leave Pay, Notice Pay and Severance Pay – common calculation mistakes

Pay for leave, notice and severance is an area many employers don’t always get it right.

The calculation of these payments is covered by s35(5) of the Basic Conditions of Employment (BCOE).

The following payments are included in an employee’s remuneration for the purposes of calculating pay for annual leave in terms of section 21, payment instead of notice in terms of section 38 and severance pay in terms of section 41 –

  1. Housing or accommodation allowance or subsidy or housing or accommodation received as a benefit in kind;
  2. Car allowance of provision of a car, except to the extent that the car is provided to enable the employee to work;
  3. Any cash payments made to an employee, except those listed as exclusions in terms of this schedule;
  4. Any other payment in kind received by an employee, except those listed as exclusions in terms of this schedule;
  5. Employer’s contributions to medical aid, pension, provident fund or similar schemes;
  6. Employer’s contributions to funeral or death benefit schemes.

The following items do not form part of remuneration for the purpose of these calculations –

  1. Any cash payment or payment in kind provided to enable the employee to work (for example, an equipment, tool or similar allowance or the provision of transport or the payment of a transport allowance to enable the employee to travel to and from work);
  2. A relocation allowance;
  3. Gratuities (for example, tips received from customers) and gifts from the employer;
  4. Share incentive schemes;
  5. Discretionary payments not related to an employee’s hours of work or performance (for example, a discretionary profit-sharing scheme);
  6. An entertainment allowance;
  7. An education or schooling allowance.

The value of payments in kind must be determined as follows –

  1. a value agreed to in either a contract of employment or collective agreement, provided that the agreed value may not be less than the cost to the employer of providing the payment in kind; or
  2. the cost to the employer of providing the payment in kind.

An employee is not entitled to a payment or the cash value of a payment in kind as part of remuneration if –

  1. the employee received the payment or enjoyed, or was entitled to enjoy, the payment in kind during the relevant period; or
  2. in the case of a contribution to a fund or scheme that forms part of remuneration, the employer paid the contribution in respect of the relevant period.

This schedule only applies to pay for annual leave accrued from the date of operation of this Schedule.

If a payment fluctuates, it must be calculated over a period of 13 weeks or, if the employee has been in employment for a shorter period, that period.

A payment received in a particular period in respect of a longer period (e.g. a thirteenth cheque) must be pro-rated.

This Schedule only applies to the minimum payments that an employer is required to make in terms of the Basic Conditions of Employment Act, 1997.”

When the legislation was initially introduced in 2004 we held seminars and sent many emails about the changes in the BCEA legislation and Section 35(5), but we have noticed that a number of organizations still have not worked through these changes and we believe that a number of companies do not calculate Notice pay, Severance Pay, Leave Pay paid out on termination or Leave Pay (while on Annual leave) correctly.

Many still pay Notice pay, Severance pay, Leave pay paid out on termination or Leave pay (while on Annual leave) using only the basic wage or salary, perhaps correctly, but without any consideration of the change in legislation. This could lead to their actions being found to be irregular by the Department of Labour.

HRTorQue Outsourcing has recently dealt with labour cases where disputes as to the value of leave pay has not only cost the client a significant amount of money in terms of legal and consulting costs but also led to the employer settling on a value that exceeds that legislatively prescribed.

 

What should you as an employer do?

By taking a few easy steps you can mitigate most risk in this regard.

  • Utilise the services of an external consultant – this shows the company has endeavoured to interpret and apply the legislation taking into account the specifics of its own organisation. This significantly reduces the risk of non-compliance.
  • Follow a process and document your decision making

This legislation is however quite complicated and can result in an increase in payroll bills if a proper documented process is not followed. The basis of this action will include a decision to include or exclude certain allowances and an explanation as to why that decision was made. We advise that you make an appointment with David Beattie of HRTorQue Outsourcing by contacting him via email at [email protected] Dave will send you a quotation covering the process that will be taken to get you through this process, with the output being a recommendation on whether or not to change your payroll calculations.

 

What process do we follow?

The process that will be followed during this consultative exercise is as follows:

  • Consultation to introduce Section 35(5) of the Basic Conditions of Employment Act
  • Identification of various cash payments, allowances, company contributions and fringe benefits
  • Separation of income categories into income payments for ‘work done’ and ‘to enable work to be done’. This is an important step in the process.
  • Identification of payments that are specifically excluded in terms of this legislation
  • A report consolidating the process, findings and decisions made.

The outcome of this consultative process (the decision table) will be implemented into the payroll if you are an HRTorQue Payroll client

Where the employer would like a remuneration policy detailing the company’s treatment of leave payments, one will be drafted by a representative of HRTorQue Outsourcing’s HR Department. The cost of this policy will be quoted on separately.

Draft code of good practice – violence and sexual harassment

A draft code of good practice on the prevention and elimination of violence and harassment in the workplace was published in the Government Gazette on the 20th of August and all interested and affected parties such as employers, employees, employee organisations and trade unions are invited to comment within 60 days.

The draft policy falls within the ambit of the Employment Equity Act and covers a wide range of undesirable behaviour falling within the scope of Violence and Harassment in the workplace.  This includes sexual harassment, bullying including cyber bullying and threats of on-line violence, intimidation, threats of violence and harassment in a number of areas focusing on racial, ethnic or social issues or threats to whistle blowers or gender or LGBT violence or harassment.

The code applies to all sectors, public and private, formal and informal and any place that could be defined as an area of work.  Any areas outside of a workplace that are governed by the process of work would be included, i.e. travel, rest areas, outside training, even commuting to and from work or accommodation provided by an employer.

The employer would also be responsible for a safe on-line and communications environment and would need to control harmful behaviour or practices conducted in these spaces.

 

From the Draft Act;

Sexual Violence and Harassment: defined as directly or indirectly engaging in conduct that the perpetrator knows or ought to know is not welcome, is offensive to the complainant and makes the complainant feel uncomfortable, interferes with work, causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person.

Racial Violence and Harassment: is defined as unwanted persistent conduct, or a single incident which is seriously degrading, humiliates or creates a hostile or intimidating environment, or is calculated to influence submission by actual or threatened disadvantageous consequences, and which is related to a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group.

All conduct either verbal or non-verbal of a racist nature whether through remarks, abusive language, name-calling, offensive behaviour, gestures or cartoons, memes or insinuations are considered undesirable.

Most of the practices listed and defined by the Draft Act fall within the generally accepted scope of “Good Practice” in a work place and are not new to most employers as the principles should be dealt with in their existing Code of Conduct policies.  The draft has sought to define and label definite practices which are abhorrent and unacceptable in a modern work setting if compared to what a reasonable person would accept as normal and appropriate behaviour.

 

How does this affect the employer?

Employment Equity Committee and Policies

The Draft Act is being proposed as an amendment to the Employment Equity Act and as such employers must look to their employment equity managers and committees to ensure that these items are addressed on their agenda at meetings and incorporated into their employment equity plans and policies.  Conclusions, minutes and resolutions relating to employment equity policies should be made available to all employees to view.

Every effort should be made by employers to ensure measures are put in place to actively prevent an environment developing where violence or harassment is tolerated.  Establishing a workplace culture of respect, dignity and inclusion for all individuals is required and expected.

 

Company Policies

The principles defined in the Act will reach across many Company Policies and Procedures that may already have been created and accepted in an Organisation.  We suggest that these are scrutinised and revised so that once the Act is accepted into law there is no scramble to become compliant.

Policies that may need revision would be the Company Code of Conduct, Dress and Ethics Policies, Language Policy, Racial Harassment Policy, Occupational Health Policies and On-line Systems User Policies.

Contracts of Employment should be reviewed to ensure there is no racial or gender bias in the documents.

Prevention and Awareness Programmes should be introduced:

The Draft Act encourages Organisations to develop a culture of dignity and respectful engagement between employees as well as between employer and staff.  This may take effort and it could be helpful to engage outside specialists to offer training and programmes that increase awareness of Violence and Harassment issues whether they are sexual or racial as well as establish guidelines of acceptable behaviour and practices in the workplace.

It is the employer’s duty to provide relevant information, instructions and training where necessary to ensure there is a safe working environment, free of risk to health whether physical or psychological, in a manner which is dignified, protected and respected.

Treatment, Care and Support of Victims:

The employer should establish a protocol or guideline for the treatment and care of a possible victim within an Organisation.  Should there be an incident of sexual, racist or violent harassment within the workplace it is important that everyone has guidelines that are clear on the interventions required in terms of their Workplace Occupational Health and Safety strategy.  Employers and employees are jointly responsible for creating a healthy workplace.  Appropriate referrals for counselling and other interventions must be communicated.

Privacy, Consent and Record-Keeping of Personal Information:

Employers and workers must ensure that complaints procedures and disciplinary issues are kept private and the rights of the affected parties are protected.  Records must be kept in a safe and secure place and consent must be acquired before sharing personal information.  A privacy policy should already be in place for the Organisation.

Procedures in Managing Violence and Harassment:

Employers must develop clear procedures to deal with Violence and Harassment.  These can form part of the Company’s normal disciplinary code.  Steps must be taken to clearly communicate to employees that they can report incidents to managers or human resource departments and these complaints will be dealt with swiftly and thoroughly and should the incident be of a serious nature there will be attention given to the well-being of the employee through counselling interventions, appropriate privacy provided and disciplinary procedures for the perpetrators.

A culture that encourages freedom to report or discuss sexual, racial or other types of bullying and harassment must be maintained and an employee should be aware that if an incident occurs it would not be trivialised or ignored.

Monitoring and Evaluating Practices:

Employers need to design and implement strategies, policies and programmes to eliminate Violence and Harassment, by identifying key elements to create a monitoring and evaluation system.  The system or mechanism created is intended to be a collaboration between employer and employees to track implementation and ensure there is an informed response.  These mechanisms and evaluation strategies must consider national efforts to eliminate Violence and Harassment in broader society.

Challenges for Employers:

The Draft Act speaks to cultural development within Organisations and this is in line with fresh impetus by Government to promote a more equal and dignified society where behaviour that could be labelled as demeaning or threatening is stamped out and recognised as having no place either in the work place or society in general.

Very often an employer may find themselves in a position of addressing particular behaviour patterns from employees that would fly in the face of what would be considered appropriate.  It is often difficult to identify this, but it is up to the employer to recognise and take heed of warning signs that there may be something amiss and act timeously to prevent an incident from developing.

A culture of decency develops where appropriate behaviour is encouraged and learnt by an employee who is observing it continuously from employers and management.  Ignoring Violence and Harassment can have major negative consequences for an Organisation that they may be ill-equipped to deal with both financially and from a marketing or PR perspective.

Domestic workers included in new COID Bill

On 10 September 2020 the Minister of Employment and Labour introduced the Compensation for Occupational Injuries and Diseases Amendment Bill to Parliament. Most noticeable of the amendments is the change to the existing definition of an “employee” to include (as opposed to exclude) domestic workers. Currently, domestic workers and gardeners are not included in the definition of an employee in the COID Act and can only claim against the Unemployment Insurance Fund.

While it is nice to see this from an equity perspective, we are concerned with the practical implementation of this change. It is unlikely domestic employers will be able to manage the challenges dealing with the compensation fund nor will the Compensation fund be able to manage the additional 5 million new employers that would need to be included. Most likely this is going to result in further tension between employers and employees…

To view the Bill, follow the link.