Background Checks

Background checks are legal but must comply with the Protection of Personal Information Act (POPIA).

Employers must obtain written consent from the candidate before conducting any checks.

Common checks include:

• Criminal records
• Employment history
• Educational qualifications
• Credit checks (only when relevant to the job)
• Social media screening (less common and must be justified)

Employers must clearly communicate the purpose of the check and avoid overreaching or discriminatory practices.

Verification and New Hire Reporting

Employers must register new employees with:

• South African Revenue Service (SARS) for tax purposes
• Unemployment Insurance Fund (UIF)
• Compensation Fund (for workplace injuries)

If using Temporary Employment Services (TES), the agency must be registered with the Department of Employment and Labor.

Onboarding Process & Documentation

Collecting Required Documentation

Employers must collect and verify the following documents during onboarding:

• Certified copy of ID or passport
• Proof of address
• Tax number (SARS registration)
• Banking details (for salary payments)
• Qualifications and certificates (where applicable)
• Work permit or visa (for foreign nationals)
• Signed employment contract
• UIF registration details (Unemployment Insurance Fund)

Providing Employee Rights and Obligations

Under the Basic Conditions of Employment Act (BCEA) and Labour Relations Act (LRA), employers must inform employees of:

• Working hours, leave entitlements, and remuneration
• Notice periods and termination procedures
• Disciplinary and grievance procedures
• Health and safety policies
• Employment Equity and non-discrimination rights
• Access to the CCMA (Commission for Conciliation, Mediation and Arbitration) for dispute resolution

This is often done through:

• Employee handbooks
• Induction sessions
• Signed acknowledgment of policies

Healthcare

Africa does not yet mandate employer contributions to a national health insurance scheme for all employees. However, the National Health Insurance Act (Act No. 20 of 2023) has been enacted to establish a National Health Insurance (NHI) Fund, aiming to provide universal access to quality healthcare. The implementation timeline and employer obligations under the NHI are still pending formal proclamation.

Current Practice

• Employers are not legally required to provide private health insurance (medical aid).
• However, offering medical aid is a common and expected benefit, especially for skilled and professional roles.
• Most employers contribute between 50% and 100% of the employee’s monthly premium. Contributions for dependents are often the employee’s responsibility or partially subsidized.
• Medical aid costs vary significantly depending on the scheme and level of coverage (e.g., hospital plans vs. comprehensive plans).
• Employers must ensure accurate payroll deductions and timely payments to the selected medical aid provider.

Retirement

While there is no universal legal requirement for all employers to contribute to retirement funds, many sectors are governed by Bargaining Council agreements that mandate such contributions. Additionally, retirement savings are strongly encouraged through national policy reforms.

Types of Retirement Funds

• Pension Funds: Provide a monthly income upon retirement.
• Provident Funds: Typically offer a lump sum payout.
• Hybrid Funds: Combine features of both pension and provident funds.

Employer Contributions

• Contributions are usually a percentage of the employee’s salary, commonly ranging from 5% to 15%.
• Employers often match or partially match employee contributions.
• Contributions are tax-deductible within prescribed limits.

Employers must:

• Select a registered retirement fund.
• Ensure timely and accurate deductions and payments.
• Provide employees with clear information about the fund.
• Comply with regulations set by the Financial Sector Conduct Authority (FSCA)

Employment Contract Details

The most commonly used types of employment contracts in South Africa, as recognized by the Department of Employment and Labor, include:

Permanent (Indefinite) Employment Contracts

• Most common form of employment.
• No fixed end date.
• Employees are entitled to full statutory benefits (leave, UIF, etc.).
• Termination requires notice and must follow fair procedures.

Fixed-Term Contracts

• Used for specific projects or time-bound roles.
• Must be objectively justifiable (e.g., seasonal work, maternity cover).
• If renewed repeatedly without justification, the employee may be deemed permanent under the Labor Relations Act.

Temporary Employment Contracts

• Typically used for short-term needs.
• Often facilitated through Temporary Employment Services (TES) or labour brokers.
• Employees placed via TES are entitled to equal treatment after 3 months.

Casual Employment Contracts

• For occasional or irregular work, often less than 24 hours per month.
• Common in sectors like hospitality or retail during peak periods.

Part-Time Contracts

• Employees work fewer hours than full-time staff.
• Entitled to pro-rata benefits based on hours worked.

Learnership or Internship Agreements

• Governed by the Skills Development Act.
• Combine structured learning with practical work experience.
• Often used for youth employment and skills development.

Essential Clauses

• Employer and employee details
• Job title and description
• Place of work
• Working hours
• Remuneration and payment intervals
• Leave entitlements
• Notice periods for termination

Probation Period

Probation or trial periods are typically outlined in the employee’s contract of employment. In South Africa, the standard duration is three months; however, a longer probation period may be implemented if it is reasonable and appropriate to the nature and requirements of the position.

Visas

Visa Categories

• Business Visa
  • Purpose: For business meetings, conferences, or professional activities.
  • Requirements: Valid passport, completed application form, letter from sponsoring company, proof of financial means, round-trip flight itinerary.
• Work Visa
  • Purpose: For employment in South Africa.
  • Requirements: Job offer from a South African company, completed application form, evaluation of foreign qualifications by SAQA, medical examination, police clearance certificate.
• General Visitor Visa
  • Purpose: For short-term visits not primarily driven by business or employment.
  • Requirements: Valid passport, completed application form, proof of funds, proof of accommodation, detailed travel itinerary.

Application Process

• Determine Eligibility
  • Identify the appropriate visa type based on the visit purpose.
  • Verify specific requirements for the chosen visa category.
• Prepare Required Documentation
  • Gather necessary documents, including valid passport, completed application form, passport photographs, proof of financial means, proof of visit purpose, and medical and radiological reports (for long-term visas).
• Application Submission and Fee
  • Submit applications to the nearest South African diplomatic or consular mission.
  • Pay the non-refundable application fee.
• Attend an Interview (if required)
  • Some visa categories may require an interview at the consulate.
• Wait for Assessment
  • Processing times vary; apply well in advance of travel dates.
• Collecting the Visa
  • Approved visas can be collected in person or sent by postal services.

Independent Contractors

South African labor law distinguishes between employees and independent contractors, primarily based on the nature of the working relationship rather than the job title.

Key Legal Distinctions:

Employees are protected under the Labor Relations Act (LRA), BCEA, and Unemployment Insurance Act, and are entitled to benefits such as leave, UIF, and protection from unfair dismissal.

Independent Contractors:

• Are not covered by these protections.
• Operate under a contract for services, not a contract of employment.
• Are responsible for their own tax, UIF, and retirement contributions.
• Have more control over how and when they perform their work.

Determining Employment Status:

The “dominant impression test” and Code of Good Practice are used to assess whether a person is truly an independent contractor. Factors include:

• Degree of control by the employer
• Integration into the business
• Provision of tools and equipment
• Economic dependence

Misclassifying employees as contractors can lead to legal and financial penalties.

Paid Time Off

Full-time employees are entitled to 21 consecutive days (equivalent to 15 working days) of paid annual leave per year.

Leave accrues at a rate of 1.25 days per month (or 1 day for every 17 days worked).

Unused leave may be carried over into the following leave cycle.

Public Holidays

• New Year’s Day
• Human Rights Day
• Good Friday
• Family Day
• Freedom Day
• Workers’ Day
• Youth Day
• National Women’s Day
• Heritage Day
• Day of Reconciliation
• Christmas Day
• Day of Goodwill

Bereavement

Employees are entitled to 3 days of paid family responsibility leave per 12-month cycle for:

• The birth of a child
• The illness of a child
• The death of a spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild, or sibling

This leave is only available to:

• Employees who have worked for at least 4 months
• Employees who work at least 4 days per week

Proof (e.g., death certificate) may be required by the employer.

Maternity Leave

• Employees are entitled to four months of unpaid maternity leave.
• Leave may begin four weeks before the expected due date and must extend to at least six weeks after birth.
• Employees contributing to the Unemployment Insurance Fund (UIF) may claim up to 60% of their salary for a maximum of 121 days.

Paternity Leave

See Parental Leave section below.

Parental Leave

All parents, regardless of gender, are entitled to four months of parental leave, though this is still under review.

Parental Leave:

• 10 consecutive calendar days for new parents (biological, adoptive, or commissioning).

Adoption Leave:

• 10 consecutive weeks for a single adoptive parent of a child under .
• If two adoptive parents, one may take adoption leave; the other may take parental leave.

Commissioning Parental Leave:

• 10 consecutive weeks for the primary commissioning parent in a surrogacy arrangement.
• The second parent may take 10 days of parental leave.

All types of parental leave are unpaid, but employees may claim 66% of their earnings (subject to UIF thresholds) if they have at least 13 weeks of continuous service.

Sick Leave

Sick leave is calculated over a three-year cycle.

During the first six months of employment:

• Employees earn 1 day of paid sick leave for every 26 days worked.

After six months:

• 30 days for a 5-day workweek
• 36 days for a 6-day workweek
• 33 days for alternating Saturday schedules

Additional notes

• Employees working less than 24 hours per month are not entitled to paid sick leave.
• A medical certificate is required for absences of more than two consecutive days.
• Sick leave resets at the end of each three-year cycle.

Termination Requirements

Notice Period

In South Africa, the required notice period for terminating a permanent employment contract is determined by the employee’s length of continuous service, as outlined in the Basic Conditions of Employment Act (BCEA):

• 0 to 6 months of service: Minimum of 1 week’s notice
• More than 6 months to 1 year: Minimum of 2 weeks’ notice
• More than 1 year: Minimum of 4 weeks’ notice

The specific notice period may be extended by agreement and is typically detailed in the employment contract or collective bargaining agreement. However, it may not be shorter than the statutory minimum once the employee has completed six months of service.

Severance Pay

Severance pay—also referred to as a transition payment—is governed by the BCEA and relevant contractual agreements. It is generally applicable in cases of retrenchment, redundancy, or operational requirements.

Standard Entitlement:

• Employees are entitled to one week’s remuneration for each completed year of continuous service.

No severance pay is required if the termination is due to:

• Misconduct
• Poor performance
• Resignation
• Retirement

Severance terms may be enhanced through collective agreements or company policies but cannot fall below the statutory minimum.

Unemployment Insurance

To qualify for unemployment benefits, an individual must:

• Have been contributing to the UIF while employed.
• Have lost their job due to retrenchment, dismissal (not for misconduct), or contract expiration.
• Not have resigned voluntarily, unless the resignation is deemed a constructive dismissal by the CCMA
• Apply for benefits within six months of becoming unemployed.
• Be registered as a work seeker with the Department of Employment and Labor.

Exclusions

You are not eligible for UIF benefits if:

• You worked less than 24 hours per month for an employer.
• You resigned without cause, were suspended, or absconded.
• You are a public office bearer (e.g., President, Ministers, Members of Parliament)

Benefit Amount and Duration

• Benefits are paid on a sliding scale between 38% and 60% of your average earnings, depending on your income level
• You can claim for up to 365 days within a four-year cycle, depending on the number of credit days accumulated.
• Payments are made monthly once the claim is approved.

Contribution Requirements

• Both employer and employee contribute 1% each of the employee’s monthly remuneration (total of 2%).
• Contributions are capped at a maximum earnings ceiling of R17,712 per month (as of June 2021)

Anti-Discrimination Practices

The Employment Equity Act (EEA) prohibits unfair discrimination in all aspects of the employment relationship. Employers are legally obligated to ensure equal opportunity and fair treatment in their employment practices, including recruitment, promotion, training, benefits, and termination.

Discrimination on certain grounds is presumed to be unfair unless it can be justified as an inherent requirement of the job.

Unfair discrimination is prohibited on the basis of:

• Race
• Gender
• Sex
• Pregnancy
• Marital status
• Family responsibility
• Ethnic or social origin
• Color
• Sexual orientation
• Age
• Disability
• Religion
• HIV status
• Conscience
• Belief
• Political opinion
• Culture
• Language
• Birth

Employees who believe they have been subjected to unfair discrimination may:

• Lodge a grievance with their employer, or
• Refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

In cases involving serious allegations or discrimination based on automatically unfair grounds, the matter may be escalated to the Labor Court for adjudication.

Workplace Safety Standards

The Occupational Health and Safety Act (OHS Act) places a legal obligation on employers to ensure, as far as is reasonably practicable, a working environment that is safe and without risk to the health of employees. This includes proactively identifying potential hazards, implementing control measures, providing appropriate safety equipment, and ensuring employees are trained in relevant safety procedures.

Key Employer Responsibilities

• Provide and maintain a work environment that is safe and without health risks.
• Ensure that all machinery and equipment are safe and properly maintained.
• Identify, assess, and mitigate workplace hazards.
• Supply employees with the necessary information, instructions, training, and supervision to work safely.
• Appoint health and safety representatives and establish safety committees where required by law.
• Report workplace incidents, injuries, and occupational diseases to the relevant authorities.

Employees also have duties under the Act, including:

• Taking reasonable care for their own health and safety, as well as that of others who may be affected by their actions.
• Cooperating with the employer’s health and safety measures and procedures.
• Reporting unsafe conditions or incidents promptly.

Employees have the right to refuse work if they reasonably believe that continuing with the task poses an imminent and serious danger to their health or safety.

Workers’ Compensation

Coverage

• Applies to all employees, including domestic workers (as of the 2022 amendment).
• Covers injuries, occupational diseases, and fatalities arising out of and in the course of employment.

Employer Obligations

• Register with the Compensation Fund
• Submit annual returns of earnings
• Pay assessments based on risk classification
• Report workplace injuries or diseases within 7 days

Benefits to Employees

• Medical aid and treatment costs
• Temporary or permanent disability compensation
• Rehabilitation and reintegration support
• Pension for permanent disablement
• Funeral costs and dependents’ benefits in case of death

Expanded Definitions (2025 Update)

• “Accident” now includes any incident arising out of and in the course of employment.
• “Dependents” include life partners, children (including step and adopted), and financially dependent family members up to grandparents and siblings
• “Earnings” are defined as gross income, excluding pensions and allowances.

Rehabilitation and Return to Work

• The amended Act emphasizes rehabilitation, re-integration, and return-to-work programs for injured or ill employees.
• The Compensation Commissioner now oversees these functions directly.

Labor Law Sanctions

• Labor Relations Act (LRA), 1995 (Amended 2025): Governs collective bargaining, unfair dismissals, and strikes. Employers can face compensation orders, reinstatement orders, or penalties for procedural unfairness. New amendments limit remedies for high-earning employees to compensation only, unless dismissal is automatically unfair
• Basic Conditions of Employment Act (BCEA), 1997: Sets minimum standards for working hours, leave, and termination. Non-compliance can lead to compliance orders, fines, and criminal prosecution for repeated violations
• Employment Equity Act (EEA), 1998 (Amended 2025): Promotes workplace equality and prohibits unfair discrimination. Employers failing to meet equity targets may face fines up to ZAR 2.7 million, naming and shaming, and exclusion from government contracts
• National Minimum Wage Act, 2018: Sets the legal minimum wage across sectors. Employers paying below the minimum wage can be ordered to pay arrears, interest, and penalties
• Employment Rights Bill (Proposed 2025): Introduces new protections like paid carer’s leave, domestic abuse leave, and extended paternity leave. Employers may face tribunal claims, compensation orders, and reputational damage for non-compliance
• Unfair Dismissal Protections: Employees dismissed unfairly can claim up to 12 months’ salary, or 24 months for automatically unfair dismissals (e.g., whistleblowing, discrimination)