Friday, January 20, 2017

HR 101 - Who is an Employee - Part 9

HR 101 - WHO IS AN EMPLOYEE – PART 9

By Nikki Viljoen – Viljoen Consulting CC.

Please note that this pertains to South African Labour Relations & Best Practice requirements.

The code also has a look at ‘when’ a person becomes as employee.  This should be of particular interest to those among us who hire staff and then change our minds.

Let’s take this example – A person applies for a job (let’s call her Brenda).  Brenda gets the job and her new boss (let’s call him Alan), is really on the ball and the result is that Brenda receives her letter/contract of employment even before her starting date.  She resigns from her previous employer and is in the process of working her notice period in, when she gets a call from Alan to say – the job no longer exists for whatever reason, and he wants to cancel the employment contract.

Let me put it this way – this can and will put Alan in a problematic situation.

You see, it is not necessary for Brenda to have started working at the new job to be regarded as an employee, in terms of Labour Legislation.  Section 26 of the code states clearly that “the definition of an employee” includes a person who has concluded a contract of  employment  to commence work at a future date.

Brenda could take Alan to the CCMA and/or the bargaining council for ‘unfair dismissal’.

There is also a process to distinguish the difference between an employee and an independent contractor.

Let’s explore the reality of this situation as I am sure that most ‘employers’ would be particularly interested in this.

We know for sure that even though a contract or letter of employment may state that a person is an independent contractor, this is not necessary so and will not necessarily make it so.

Section 27 of the code says that the courts follows a procedure called the “dominant impression” test, when they make this type of decision.  These are:

1. All of the aspects of the contract and/or relationship between the employer and the person need to be evaluated and a decision then made on the dominant impression formed during the course of that evaluation.
2. As an added precaution it is also noted that all the different factors do and would not carry the same weight.  This is because there is no single criterion that will determine whether an employment relationship exists or not.
3. The true relationship between the employer and the person needs to be discovered, as the wording in the contract may not be a true reflection of this relationship. So the court would need to look at the reality of the relationship rather than just the contractual nature.

There are obviously many instances where the employer treats an individual as a contractor, when in fact they are an employee.  One of the most common ones is:

Conversions – the employer claims that a person who was ‘previously’ employed has now become a contractor.  If the person is still performing exactly the same or even similar work as they did when they were “employees”, chances are they are actually still employees.

So in closing, the employer needs to be aware of the differences between an employer and an independent contractor and of course make sure that they are within the scope of what the law requires.

It can be an extremely costly exercise, if an employer is taken to court or the CCMA, and it is discovered that they have not followed the law and are therefore in contravention of the Code.

Make sure that you know what it is that you want and then make sure that you follow the letter of the law – it is much easier (and cheaper in the long run) to start off in the correct manner than to try and sort it out afterwards.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za


Thursday, January 19, 2017

VAT 101 - Invoice Requirements

VAT 101 – Invoice Requirements

By Nikki Viljoen – Viljoen Consulting CC.

Please note that this pertains to South African VAT (Value Added Tax) regulations.

As a VAT vendor – it’s not just about ensuring that you do the calculations correctly.  It’s not just about making sure that you only claim for what you are entitled to claim for.  There are several other issues at stake and if you are not aware of them, chances are that you are going to end up in hot water, should SARS decide to do an audit.

Firstly, let’s just get the most important issue out of the way.  You need to retain all of your tax invoices.  Whether you retain them in hard copy or soft copy or both, is not the real issue – the bottom line is that you have to keep them for a minimum of 5 years.  So don’t be going throwing anything out!

Here’s a basic checklist for the requirements that MUST appear on your invoice.

The words “Tax Invoice” must appear in a prominent position.  Don’t try and be clever and hide it in amongst the rest of the wording on your invoice.  Rather display it together with the number of the invoice.  That way there can be no misunderstanding
The Name, address and VAT registration number of the supplier.  As a supplier myself, I have found it just easier to have my VAT number quoted on all of my correspondence.  That way there can be no confusion.
The Name, address and VAT registration number of the recipient.  This one is not always easy to get.  Sometimes clients are reluctant to give some of their personal details.  Tip. You can check you client/supplier’s VAT number on the SARS site.  Beware of people posing as VAT vendors.  It will affect your return.
The invoice number and date of the invoice.  Remember that the invoices have to run consecutively and therefore the dates must be consistent with those numbers. There is nothing to stop you from personalizing the invoices, as long as every number follows on from the previous number.
A full and proper description of the goods or the services supplied. Abbreviate if you must, but ensure that your description is understandable.
The value of the goods/services supplied.  It is also a good idea to evidence the cost of the goods/services supplied and then the VAT value as a separate figure and then the total cost of the invoice (which would be the value of the goods/services and the value of the VAT added together).

Remember though that unless you are a Sole Trader and/or a partnership where the partners are natural person, you will have to pay VAT on invoices raised.  This means that irrespective of whether you have been paid by your client or not, you have to pay the VAT portion of the invoice across every two months.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za

Wednesday, January 18, 2017

Networking 101 - Building Your Brand

Networking 101 – Building Your Brand

By Nikki Viljoen of Viljoen Consulting CC

So now you have found your passion and you are rushing around madly trying to find work, build relationships and then do the work.  What’s next?

Since I have discovered that the majority of people are not natural networker’s, I turned to Helen Nicolson’s book “Networking: The Unwritten Rule of Business you need to know” for inspiration, and discovered that it would probably be a great idea to zone into and then emulate what Great Networker’s do.  Helen writes:
 “Great Networker’s:
Identify and zone in on their strengths,
Build their brand around their top 10% strength base.”

So what does this mean to me, as a natural networker.  Giving this some thought – remember I like to simplify things and  I am going to use myself as a case study (God forbid I should use someone else and get sued for something like slander or liable or one of those uglies!)

In my opinion, some of my strengths are (and if you have know me and have a different opinion great!  Keep it to yourself though, because remember – “other people’s opinions of me are none of my business!)

1. I am a ‘doer’ – I get so sick and tired of going to meetings that just go around and around and no decisions are made.  Going to a meeting to set up another meeting, makes no sense to me whatsoever and wastes my time.  So get the ball rolling, make a decision and get going!

2. Making quick decisions, based on the information that I have available at the time that the decision is made.  Another pet hate of mine.  People who agonize over making a decision.  Then before the decision is made they ask everyone and anyone,  what they should do, until they hear an answer that sounds vaguely like what they had in mind.  Then that’s their decision – you see they can then abdicate the responsibility if something goes wrong, because they got advice from somebody else.  For goodness sake, make a decision and if it’s wrong – correct it and move on!

3. Change!  It’s going to happen whether you like it or not.  If you don’t get with the program it will drag you along with it or you will get left behind totally.  For my own part, it is easier on the nerves to keep up and not be like a salmon and swim against the water flow!  Look, let’s be realistic – I am not going to change something just for the sake of change – it definitely has to have a reason and the result must be either the same as what I have or better – or no change.  Be prepared to have an open mind though.  Someone else may be able to do it “better” than you or have a better idea than you.

4. Judgement!  Don’t be so quick to judge someone by the way that they look, or speak (or don’t).  You don’t know them.  You have no idea what their lives are like or what trials and tribulations they have gone through in life.  One of my best clients today is someone who I met in a pub, wearing dirty shorts and a stained, dirty, smelly, torn t-shirt.  He had just come back from a fishing weekend and they had run out of beer and he was dying for an ice cold one.  The man runs 4 businesses, has a yacht, a helicopter and several speedboats!  Don’t judge until you know the person better.

5. Listening.  My friend Geraldine always tells me that her mum used to tell her that “God gave us two ears and only one mouth for a reason”.  If you are talking all the time, you miss out on listening to not only what the other person is saying, but also what they are needing.  Quite often, what they are needing is some help in their business which either you can give to them or one of the people in your database can assist them.

6. Opportunities.  I can go crazy when I hear people saying “ work is scarce”.  Actually it is the other way around – there is a huge abundance of work and an even greater abundance of opportunity out there – it’s just a matter of recognising it.  Once you have recognised it – do something about it.  It’s not going to just fall like manna from heaven!

7. Networking.  Because I am a natural networker – it stands to reason that networking is one of my strengths.  During the course of my ramblings on the subject, you will get to understand hope fully the nature of the beast and be able to work with it.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za

Tuesday, January 17, 2017

Business Tips - What is Security - Really?

BUSINESS TIPS – What Is Security - Really?

By Nikki Viljoen – Viljoen Consulting

So what does security mean to you as a small business owner?  Does it mean that your success will be guaranteed?  Does it mean that Joe Public will be blown away by the widgets that you want to sell or desperate for the services that you provide?

Whatever your idea of what your security actually is – how long will it last?  Is it long term or short term – seasonal or here for the duration?

Well here’s the reality – the answer to all of the above is actually ‘who knows’!

Security is more fickle than the most high maintenance person that you know or probably are ever likely to know.  What may be absolutely fabulous today and selling like hotcakes may die a brutal and lonely death tomorrow.

So how do we protect ourselves from this ‘lack of security’?

Well quite honestly there are several ways and I am going to share some of them with you now.

1. Firstly we have to keep evolving, growing, changing, morphing – looking at new ways to do things, keeping up with technology or business trends.  We do this by researching, reading (not the heat type magazines), but what is in the newspapers and business magazines.  Read blogs and articles on line.  Take a course or two – meet with like minded individuals and discuss what is happening around you. Keep up to date with what’s in and what’s not.
2. Don’t ever give up – be tenacious – find ways around obstacles (whether that means you go around them, under them, over them or even through them).  Collaborate with people who do/sell similar things or team up with people whose strengths are your weaknesses and visa versa.  If it is worth fighting for – fight back.  If it isn’t then perhaps you need to change direction or owning your own business is not actually for you.  Make a decision one way or another.
3. If you have staff or are part of a team, work together.  Pull in the same direction and not against one another!  Be clear on what everyone has to do and choose people who have the same goals and aspirations.  It’s a lot easier than you think and a lot more productive that you on your own.
4. Be ready for the unexpected!  Things often happen that were not factored into – don’t let those things trip you up.  Stop – look at the situation calmly (and without any drama and emotion), do the research and make an informed decision.
5. Understand that there is nothing to be afraid of.  My friend and mentor Vanessa always tells me that the only thing I have to be afraid of is my own fear.  Face it, head on and squarely and I promise you it (the fear) will back down!

Remember that you are a special person and the mere fact that you have gone into business on your own, should tell you that you are stronger than you have ever given yourself credit for.

So be proud of yourself, proud of your achievements and go forward knowing that you can do this!  Oh and of course – don’t forget to have fun!  Always, always, always – have fun.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za

Monday, January 16, 2017

Motivation - Process

MOTIVATION –  Process

By Nikki Viljoen of N Viljoen Consulting CC

It is said that  “it is a process, not an event, for one to become the person I want to be.”

How logical is that.  It really would be a case of suspending belief, if you thought that one day you would wake up and be a completely different person to the one you were when you went to bed the night before.  You don’t just become someone else over night.

Like most things in life, changing who you are into who you want to become, is a process.  Like most things in life it is a process that has to be consistently worked on, tweaked, molded, cried over, laughed about and then at some stage either abandoned as a bad idea or embraced and celebrated as a victory.

Whether you cry in defeat or celebrate in victory is largely dependent on the simplicity and/or complexity of the process and your commitment to the changes that you want to take place.

The level of your commitment to the changes that you would like to make to yourself is dependent on the internal hunger that you have, to see yourself in a different light other than who you currently are.

It’s that hunger that drives you to achieve.
It’s that hunger that makes you strive to attain greater heights.
It’s that hunger that keeps you focused with your vision clearly before you and visible to you at all times.

Process for me is one of the most simplistic things on the planet to put into place.  Yet I am constantly amazed at some of the processes that some people put into place in order to achieve the most basic of results.  Some of them are so complicated that you would probably need a degree of some sort to just be able to read it, let alone understand it on any level.

I think that we, as human beings, on some level seem to think that if things are easy and not complicated that they are not worth anything.  We couldn’t be further from the truth if we tried.

Instead of thinking “Well it can’t be that simple, can it?” we should be saying – “It is just that simple!”

So simplify all your processes, get where you want to go and enjoy life the way it was meant to be enjoyed.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za.

Friday, January 13, 2017

HR 101 - Who is an Employee - Part 8

HR 101 - WHO IS AN EMPLOYEE – PART 8

By Nikki Viljoen – Viljoen Consulting CC

Please note that this pertains to South African Labour Relations and Best Practices requirements.

Now you have all the details of who an employee is, however human nature being what it is, both you and the person agree that although they fit into at least one of the categories, they are in fact – not an employee.  Well the law makes provision for this too.  Here are some examples of what you may think and what the law says!

You have a contract with a person that clearly states something along the lines of “this is not a contract of employment” or “this is an independent contractor contract” or “it is agreed by both parties that the person is not an employee” and any other variation on a theme that you may have that means this.  Please take note – you cannot do this, well I suppose you can, however that said, it is meaningless because the Code says (and therefore the law says) in paragraph 16:

“a statement in a contract that the applicant is not an employee or is an independent contractor must not be taken as conclusive proof of the status of the applicant.”  The code also says “The fact that an applicant satisfies the requirements of presumption by establishing that one of the listed factors is present in the relationship does not establish that the applicant is an employee”.

So as usual the law is as clear as mud!

However an employer can use whatever evidence that they have in order to show that the person is not an employee, despite the fact that they meet at least one of the requirements.  If the employee  cannot give any evidence proving that the person is not an employee then the person will be considered an employee and that is the end of that.

So be very clear about what you mean when you draw up the contracts.

Let’s have a look at what the Definition of an Employee is.

The Labour Relations Act gives us several definitions of an employee.

Section 78 has a definition that is ‘specifically for the purpose of excluding senior managerial employees from the definition of an employee’.  It says:

“employee means any person who is employed in a workplace, except a senior managerial employee whose contract of employment or status confers the authority to do any of the following in the workplace:-
a. represents the employer in dealings with the workplace forum; or
b. determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace.”

This means that a senior managerial person, who can make the above-mentioned decisions is by definition – not an employee.

The definition of an Employee in Section 200A, however says:-

“a.  any person, excluding an independent contractor, who works for  another person or for the State and who receives, or is entitled to receive any remuneration and
c. any other person who in any manner assists in carrying on or conducting the business of an employer, and ‘employed’ and ‘employment’ have meanings corresponding to that of ‘employee’ – (This definition is also found in the BCEA, the EEA and the SDA.)

This means that the employer can show evidence that the person is an independent contractor who was contracted for particular task, even if that task has taken or will take longer than an average 40 hours over the last three months.

It would then be up to the Court and/or the Tribunal to decide if the person is then in fact an employee.

Next week will be the last one in this particular series and I will continue with when a person becomes an employee.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za


Thursday, January 12, 2017

VAT 101 - Claiming VAT Back on an Employee's Telkom Account

VAT – Claiming VAT Back On An Employee’s Telkom Account

By Nikki Viljoen – Viljoen Consulting CC.

Please note that this pertains to South African VAT regulations.

There are instances where employees are obliged to use their own resources on behalf of their employers.  The VAT that has been charged in these instances can also be claimed back.

Here is the story.

Mike owns a chain of retail stores throughout South Africa.  Mike employs a team of individuals who are area or regional Managers, whose function it is to spend most of their time in the stores to ensure that they are compliant in terms of the Company’s policies and procedures, that staff are trained and informed on new products and motivated to sell and that targets are achieved.  George is one of these regional Managers.

Part of George’s duties is to compile and file reports to Head Office on each store that he visits.  Due to the number stores that fall under George’s responsibility, time is of the essence and in short supply and there are often many weeks that George does not have time to physically get to the office and he must communicate with Head Office and his stores via e-mail from home.

Obviously in this instance, George is entitled to claim these Telkom calls and Internet expenditure back from Mike’s Company.  These claims would also include the VAT portion of the amounts to be claimed back.

In fact, if the truth be told, any expenses that are incurred by an employee, on behalf of the employer must be reimbursed to the employee, inclusive of VAT (of course this only applies where VAT has been charged).

The employer then would be entitled to claim (where applicable) the VAT portion of these reimbursements when they calculate their VAT from the offset between the input and output VAT.

If you are not sure about what can and can’t be claimed contact your nearest SARS office.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za