I have recently purchased a restaurant and we decided to keep the staff on. They were never issued with a contract by the previous employer. We have opened a holding company that will be employing these staff members my questions are as follows;1. Are we by law required to honor their term of employment previous to our ownership? If so do they have to supply proof of the employment term?2. How long do they have to accept the contract/ job offer we have supplied to them?3. Is it a legal requirement to supply them with uniform ( they have uniform from the previous owner)4. Are bonuses mandatory (this is what their union member is claiming)5. Are female staff members required by law to inform us if they are pregnant?Please contact me if you need further information regarding these questions XXXXXXXXXX
Good day. This is an info request to assist you better. Please continue on this thread.Please confirm that you took this over as a running concern.
as it was an opperating restaurant we were required to do so, how ever they will not be employed by the restaurant but rather by our holding company
Since you have bought over the restaurant as a running concern, section 197 of the Labour Relations Act is applicable. It may be worth your while to read through it in order to ascertain your obligations. You will be able to find a copy of the Act on the website of the Department of Labour.1. If you look at the section, you will note that you would have to honor their term of employment, however, this is only relevant where retrenchment would come in, should you wish to reduce staff, or if there is bonuses or something to that effect coupled with the term of service. Section 197 (2)(d) state that the term of employment would be calculated from the commencement of employment of the seller employer.He who alleges must prove. So, if they allege that they have been working there for 10 years and you dispute that, they would have to prove that they have been working there for that amount of time. the law, however, does not require them to do so, however. So, it is not an obligation as such.2. If you look at section 197(2)(a), you are substituted in the place of the previous employer. In other words, you cannot alter their terms and conditions without their permission. In other words, the contract that they had with the previous employer is the contract that is still valid today and you cannot force them to sign new contracts. If they do so voluntarily, that is fine, but the old agreements remain in place until they do so.3. Only in terms of Health and Safety Regulations (such as hairnets and gloves and other protective clothing relevant to your industry). You can ask the Department of Labour to assist you with such an assessment. 4. Bonuses might be mandatory if there is a Sectoral Agreement that has been registered by the Minister of Labour relevant to your industry. Again, the Department of Labour will be able to assist you in establishing whether a bargaining council does operate within your industry or not and if so, who they are. You would then probably be able to draw the sector agreement from their (the councils) website. This sector agreement is kind of a supplement to the Basic Conditions of Employment Act for workers covered under that bargaining council.If there is no such a collective agreement in operation, bonuses is not mandatory, unless the previous agreements had them in.5. No. They do, however, need to do so in order to claim maternity leave. Where pregnancy is a health and safety issue, then it might be made mandatory, but you would have to find the employee alternative work then that she can do that is safe until she goes on maternity leave.
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L.LB, Civil and criminal litigation, contracts, labour and family law
I have consulted the act and sections you have brought to my attention. Section 197(2)(a) states that:
The new employer is automatically substituted in the place of the old employer in respect of all contracts of employment in existence immediately before the date of transfer. So my questions is: am I still legally bound to this obligation if there is no legal binding contract between the old employer and the employees?
There must be a legal and binding contract, since they are working there. The fact that it is not in writing does not mean that there is not contract. It merely means that there is no written agreement, but a verbal one. If you want to formalize the old situation on a written agreement, that is fine, but you cannot change what they are paid, their hours of work, perks etc that they were entitled to or that was afforded to them whilst they were in the employ of the previous employer. If they claim some benefits, claiming that the old employer allowed that to them, then confirm with the previous employer if this is, in fact, the case.
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