• 2018-04-04

    In this article we will be looking at the responsibilities of the practice owner when they find themselves in the position of Employer.  Many times we find that a thriving practice grows to such a level that the services cannot be provided by one therapist, and that the administration of the practice requires the dedicated attention of an administrator / receptionist.  The practice owner should consider how the business can be structured in order to facilitate the employment of additional staff, and consider the option of outsourcing the administration if required.

    It is at this stage that it becomes clear to the business owner that the most important asset to the practice is in fact its employees, who also make up a considerable percentage of the monthly expenses in the form of salaries.  Human resource management will therefore feature more and more in the management of the practice, but what exactly does this entail, and what should you look out for? 

    Here are some tips and guidelines, based on the legislative requirements as set out by Labour Relations Act, the Basic Conditions of Employment Act and the Code of Good Practice:

    Who is an Employee?

    It is important firstly to determine if there is an employment arrangement between you and your staff.  This may seem a simple place to start, but has far-reaching effects.  This is not determined by whether you have an Employment Contract or not (while it is important to have this), but rather by the predominant impression test as laid out in the Labour Relations Act and the Code of Good Practice:

    1. Does your staff member fulfil one or more of the following requirements  :
      1. Does your staff member work for more than an average of 40 hours per month, over the last 3 months?
      2. Are they under your control or direction?
      3. Are their hours worked under your control?
      4. Are they part of your organisation?
      5. Are they economically dependent on you?
      6. Do you provide them with tools of the trade or equipment
      7. Are you the only one to whom they are rendering a service to? 
    1. Even if you earn 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 if there is an employment relationship, under the Code of Good Practice.

    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.  Where no UIF is paid, it is important then that the staff member is aware of the fact that if they are 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 as compared to fixed salaried staff.  I often find that so called “Locums” who work more than 24 hours a month, and who can demonstrate an employment relationship in accordance with the above, are not afforded annual leave (minimum of 15 days per year), sick leave (30 days in a 3 year cycle) and family responsibility leave benefits (3 days per year), to which they may be entitled to.  This may be in contravention of the relevant labour laws.

    To reiterate then:  If you 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 and family responsibility leave.  This would be calculated at an average of the past 3 months’ gross salary.

    Employment contracts

    Should a staff member not have a signed employment contract, remember that they will then default to the BCEA entitlements, and cannot be denied benefits on this basis.  It is advisable to set up 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 done by mutual agreement.  It is therefore ideal to set this up and sign this before employment commences. 

    What if I employ 5 or more staff members?

    Should you employ 5 or more employees, please note the following requirements of the employer, as per the BCEA:

    1. You need to display a statement of the employee’s rights in the official languages which are spoken in the practice, in a place where all staff can read this.  It is suggested that you get a summary of the BCEA from the government printers, and put this up in the staff pause area
    2. Give the staff members a monthly payslip, containing the following information:
      1. The employer’s name and address;
      2. the employee’s name and occupation;
      3. the period for which the payment is made;
      4. the employee’s remuneration in money;
      5. the amount and purpose of any deduction made from the remuneration;
      6. the actual amount paid to the employee; and
      7. 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 made;

                         iii. the number of hours worked by the employee on a Sunday or public holiday during that period; and

                         iv. if an agreement to 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
    • overtime
    • compressed working hours
    • averaging of hours of work
    • meal intervals
    • daily & weekly rest period
    • night work and public holidays. 

    Effectively, what this means it’s that if you are earning over the threshold, it is assumed that you play a more senior or management role in the business, and can therefore not seek protection from the BCEA regarding hours of work, claiming for overtime etc.  It is therefore important that these issues are addressed in the employment contract.

    Should you require any assistance in staff contracts, practice policies, payroll and other HR requirements, feel free to contact ProfNet Medical.  We also offer complete financial and HR services to practices and practice owners, allowing the practitioner to focus on the areas in which they are trained and are expert in, being patient care!

    Please contact ProfNet Medical at 012 683 0379 or email us at info@profnetmedical.co.za for assistance in Human Resource management or for more information. 

    We also offer complete financial services to practices and practice owners, allowing the practitioner to focus on the areas in which they are trained and are expert in, being patient care.

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