Is this legal?

Pho3nix said:
What exactly in a contract would allow a contract to do this? I'm curious. Never saw anything even vaguely worded in mine that would let a company stop paying me for my work.

As for leaving, she is looking but the market is krap.
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There might be some kind of clause stating that if company does not make operational targets salaries will be paid on performance or something to that effect. Sounds very dodgy to me tbh, never heard of it. But I doubt they would just go and do it unless they have the contract to do it.
 
They state a monthly salary...

Is this monthly salary mentioned in another document that was signed, or elsewhere in the contract?

They can't unilaterally change it.
 
ToxicBunny said:
They state a monthly salary...

Is this monthly salary mentioned in another document that was signed, or elsewhere in the contract?

They can't unilaterally change it.
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This is in the main contract between friend and company with working hours etc.
Actual amount is what is on the other document.
 
As others have said... contract. Must be an agreement signed by both parties. A simple piece of paper is not a contractual agreement. Law doesn't apply as we don't have a minimum wage so you can essentially hire someone for free.
 
NullHypothesis said:
Looks like a basic salaried employee. I don't think South Africa's pro-labour arbitrators will interpret that can mean you can hire someone for free because we have no minimum wage. Often employees prevail at these kinds of disputes.
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There's currently a situation going on where people are hired way below average wage of for no wage as interns because we don't have a minimum wage.
 
NullHypothesis said:
Looks like a basic salaried employee. I don't think South Africa's pro-labour arbitrators will interpret that can mean you can hire someone for free because we have no minimum wage. Often employees prevail at these kinds of disputes.
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Definitely not right. It clearly states monthly salary, not monthly commission, or performance based salary, just a salary, which they would have agreed upon. They can't go and change the structure, unless the position she was in before is being done away with, then she has a choice, its pretty much a new offer she will have to take or leave. If she refuses to take the new offer, they cannot fire her, they would have to retrench her.
 
Pho3nix said:
This is in the main contract between friend and company with working hours etc.
Actual amount is what is on the other document.
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You have a documented salary... they can go fsck themselves...
 
Ancalagon said:
Also wouldn't minimum hourly wage apply? In other words, she can't earn R0 per hour - even if she is paid on commission.

Doesn't sound legal to me.

Tell her to contact a labour lawyer immediately.
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Not necessary,. there is no universal minimum wage in this country AFIAK. There are, however, sectoral and ministerial determinations for employees in specific work areas - example, domestic workers, farm labourers etc... Purpose of which is to protect these usually unskilled and vulnerable people from labour abuses, and therefore minimum wages is set by the law. More so, these sectors are also difficult to form and participate in organised labour and exercise right of recourse - domestic workers example. The OP's case, it does not appear to fall within any one of these several sectors. Minimum wage therefore not applicable IMHO.
 
iAmThePope said:
Definitely not right. It clearly states monthly salary, not monthly commission, or performance based salary, just a salary, which they would have agreed upon. They can't go and change the structure, unless the position she was in before is being done away with, then she has a choice, its pretty much a new offer she will have to take or leave. If she refuses to take the new offer, they cannot fire her, they would have to retrench her.
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ToxicBunny said:
You have a documented salary... they can go fsck themselves...
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Thanks guys. Told her to call the CCMA in the morning for some advice on the matter.
She is just a little worried that they might not sign her letter stating she worked there previously as a candidate attorney when she finishes her articles.
 
Swa said:
As others have said... contract. Must be an agreement signed by both parties. A simple piece of paper is not a contractual agreement. Law doesn't apply as we don't have a minimum wage so you can essentially hire someone for free.
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Apparently they are drawing up new contracts for them to sign. Company also apparently went through this 6 years back and the people that refused to sign back then were fired.
NullHypothesis said:
Looks like a basic salaried employee. I don't think South Africa's pro-labour arbitrators will interpret that can mean you can hire someone for free because we have no minimum wage. Often employees prevail at these kinds of disputes.
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Hmm..
 
Pho3nix said:
Thanks guys. Told her to call the CCMA in the morning for some advice on the matter.
She is just a little worried that they might not sign her letter stating she worked there previously as a candidate attorney when she finishes her articles.
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That makes it tricky.

OP, read this case http://www.saflii.org/za/cases/ZALC/1998/43.html - although it does not specifically deal with the issue your friend faces, it does, however, provide the grounding in determining the relationship with the principle. From that, figuring out what recourse is available is pretty straight forward...
 
xeslaro said:
That makes it tricky.

OP, read this case http://www.saflii.org/za/cases/ZALC/1998/43.html - although it does not specifically deal with the issue your friend faces, it does, however, provide the grounding in determining the relationship with the principle. From that, figuring out what recourse is available is pretty straight forward...
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Read through it and from what i saw. The company in this instance was arguing the court could not weigh in on the matter because a "formal" employment contract was not instituted but one as per the law society. Hmm.. Let me speak to her and I shall report back.
 
Pho3nix said:
Read through it and from what i saw. The company in this instance was arguing the court could not weigh in on the matter because a "formal" employment contract was not instituted but one as per the law society. Hmm.. Let me speak to her and I shall report back.
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In resolving a legal dispute, the most important aspect is to determine under which authority a remedy exists. Under normal employment circumstances, disputes are easily resolved at CCMA or bargaining council, and these are constituted by the Labour relations Act. What is important, however, is that in any CCMA dispute there must be an Employee/Employer relationhip as defined by the BCEA.

When I read 'candidate attorney', my immediate concern was, does an 'articles of clerkship' form a Employee/employer relationship that which is governed by the Labour Relations rules, or does it form 'vocational work' for a stipend governed by the Attorney's Act.

From that case I linked, the Judge was succinct in stating
In the light of all the above I conclude that a contract of articles of clerkship does produce an employment relationship contemplated by the Labour Relations Act, 1995
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. From this your friend finds jurisdiction under the Act and therefore the CCMA to find a remedy.

I'm just curious - your friend's future vests in her principle's hands - literally. Would it be in her best interest to ruffle feathers in the knowledge that her tenure at the firm is not permanent? I understand that she obviously has a right to fairness etcetra, but, in her circumstances would she not be causing more damage to herself in the long run?

This lawyer fraternity are a sticky bunch and one would not want to burn bridges this early in a promising career. Just a consideration. At the end of the day, her Principle needs to vouch for her in acceptance to the law society in terms of conduct, fit and proper person etc - these are such subjective values that a Principle could easily abuse for nefarious purposes.
 
xeslaro said:
From that case I linked, the Judge was succinct in stating . From this your friend finds jurisdiction under the Act and therefore the CCMA to find a remedy.

I'm just curious - your friend's future vests in her principle's hands - literally. Would it be in her best interest to ruffle feathers in the knowledge that her tenure at the firm is not permanent? I understand that she obviously has a right to fairness etcetra, but, in her circumstances would she not be causing more damage to herself in the long run?

This lawyer fraternity are a sticky bunch and one would not want to burn bridges this early in a promising career. Just a consideration. At the end of the day, her Principle needs to vouch for her in acceptance to the law society in terms of conduct, fit and proper person etc - these are such subjective values that a Principle could easily abuse for nefarious purposes.
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Herein lies the conundrum. She doesn't want to burn a bridge and knows she needs that recommendation.
So she worked as a candidate attorney in 2012 till 2013 but because she did not pass and still has not passed all the articles. She has been "sold" to the clients as a admitted attorney and has been working there in litigation matters as well without supervision.

Now on both sides of this, there is a lot of wrong doing.

Does she take it to the chin and work off no basic, no petrol allowance and only commission (which she must share with her assistant (company gets 60% of money, the other 40 is split as follows = 65% to friend and 35% to assistant)).
 
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