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South African restaurant and fast-food businesses often rely on ‘casuals’ for peak periods and commission structures for sales-driven roles (functions, catering sales, delivery add-ons, upselling, etc.). The risk is that ‘casual’ and ‘commission’ are not legal shortcuts but simply ways of organising work and pay within the same underlying employment law framework.

Casual’ Work and its Legal Reality

 In practice, ‘casual’ usually means one of these non-standard arrangements:

• Part-time/variable-hour employees (rostered as needed).
• Fixed-term/seasonal employees (holiday rush, events, peak tourism).
• Very short-hours workers (e.g. occasional weekend shifts).

Several factors are worth understanding in the ‘casual’ space:

• Coverage: The hospitality sector definition in Sectoral Determination 14 (SD14) explicitly covers restaurants, coffee shops and fast-food outlets, meaning that many ‘casuals’ are still squarely inside SD14 unless employees are covered by another sectoral determination or a bargaining council collective agreement. Misidentifying the applicable instrument is a common compliance failure – especially in areas with bargaining council coverage – so it is important to check which legislation covers your business.
• The written terms requirement: The Basic Conditions of Employment Act (BCEA) requires employers to provide written particulars of employment when employment starts, including hours, pay rate/method, overtime, leave, notice, and any applicable sectoral determination or council coverage. SD14 mirrors and reinforces this requirement for hospitality employers and sets out similar written particulars/obligations (and retention duties). For “casuals”, the written particulars should be explicit about whether the work is ad hoc or on a roster, how shifts are offered/accepted, the pay calculation method (hourly/weekly), overtime rules and approval, and how leave is treated (if applicable).
• The less-than-24-hours-per-month exception: While certain BCEA chapters (working time, leave, particulars, termination) do not apply to employees who work less than 24 hours per month for an employer, this does not mean that they have no rights. Workers may still have Labour Relations Act (LRA) protection (e.g. unfair dismissal) depending on facts, and the arrangement can still be scrutinised in terms of whether the person is actually an employee. Be careful not to artificially keep people below 24 hours to avoid obligations if the real pattern of work suggests ongoing employment – especially where the worker is effectively integrated into operations.
• Misclassification risk: If someone is labelled a ‘contractor’ but is controlled as staff (rostered hours, supervision, integration into the team, tools provided), they may be presumed to be an employee under BCEA s83A (for those under the earnings threshold), based on factors such as control, integration, and working 40+ hours a month over the last three months. In hospitality, ‘contractor’ labels for waitstaff/runners/delivery marshals often fail because operational control is high.
• Rolling fixed-term arrangements: Restaurants often use repeating short fixed-term contracts (“we’ll renew monthly/seasonally”) which raise two key LRA exposures:
• Deemed indefinite employment (s198B): For employees earning below the earnings threshold, fixed-term contracts beyond three months are only lawful if the work is limited/definite or the employer can show another justifiable reason. Offers/renewals must be in writing stating the reason, otherwise the employment is deemed indefinite.
• Reasonable expectation dismissal (s186(1)(b)) : Non-renewal can be a dismissal if the employee reasonably expected renewal on the same/similar terms and the employer doesn’t renew (or renews on less favourable terms).

Mixed messages (“don’t worry, we’ll keep you”) and regular renewals create expectation risk, especially when the employee’s pattern looks permanent.

Commission Worker Scope and Constraint

In hospitality, SD14 contains a dedicated “commission work” clause as commission is common for function/catering sales, promotions, delivery upsells, and corporate account acquisition.

A number of factors come into play:

• Minimum rules for commission arrangements: Under SD14:
• The employer and employee may agree in writing that the employee will perform commission work regularly.
• The employer must pay at the agreed commission rates provided that, regardless of commission earned, the employee receives not less than the prescribed minimum wage for the period worked.
• The commission agreement must be concluded before work commences and must include wage/rate, commission calculation basis, the calculation period (no more than one month), when commission is paid (within seven days after the period ends), and the sales/targets/orders that earn commission.
• If the employee falls below the minimum wage because of an act/omission by the employer that restricted earning ability, the employer must top up to at least the minimum wage.
• To cancel/amend the commission agreement or applicable rates, the employer must give at least four weeks’ notice.

Many commission schemes in practice fail because the basis is vague, periods exceed a month, or payment is delayed beyond the SD14 timeframe.

• National Minimum Wage Act (NMWA) considerations: The NMWA states that every worker is entitled to a wage not less than the national minimum wage. It cannot be waived and overrides contrary contract/collective agreement/sectoral determination provisions. For NMW calculations, the wage is the amount payable in money for ordinary hours, excluding specified categories such as certain allowances and gratuities/tips/gifts. If a worker is paid on a basis other than hours worked (e.g. commission), they may not be paid less than the NMW for ordinary hours. In essence, if commission is low in a week/month, the employer must ensure that the worker still reaches at least the minimum wage for ordinary hours worked.
• Exit and entitlement: Disputes frequently arise when employees resign or are dismissed with commission “in the pipeline”. South African courts often focus on what the contract says about when commission accrues and whether forfeiture is valid or clearly agreed. A policy regulating commission is not enough if it’s not incorporated clearly and consistently; vague forfeiture terms can fail.

Practical Priorities for Hospitality Employers

For “casual”/ad hoc staff:

• Use the correct instrument: SD14 applies to restaurants/fast food unless a bargaining council agreement covers the workplace.
• Written particulars must be issued on commencement and updated when terms change.
• Avoid rolling fixed-term contracts without S198B justification.
• Manage expectation risk by keeping renewal communications consistent and in writing.
• Don’t misclassify contractors where the operational reality shows control/integration.

For commission workers (including hybrid base + commission):

• Issue a written commission agreement before start, with all SD14 mandatory content.
• Ensure that pay meets at least the NMWA floor, and remember that tips are excluded from the NMWA “wage” calculation.
• Pay commission within SD14 timelines and keep pay statements/records.
• Define “earned” vs “paid”, refunds/chargebacks, and treatment on termination to avoid disputes.
• Plan for top-up obligations if sales opportunities are restricted.

The hospitality industry comes with many complexities and challenges for employers, but when correctly managed through the above, employers can leverage the legislative flexibility mechanisms to best suit their operations and to keep their competitive edge in the market.