A basic guide to labour law and employee rights

Every employee in South Africa, whether in an office, a vineyard, or a mine, has the right to fair treatment at work. These rights aren’t just moral ideals, they’re guaranteed by the Constitution and backed by legislation like the Basic Conditions of Employment Act. This law gives us rules about things like working hours, pay, leave, and breaks. It helps protect workers, especially those who may not have had a chance to know their rights, from being overworked or underpaid. It’s about making sure that everyone, no matter their background, has the chance to work in decent conditions. If these rights are not respected, there are ways to get help and stand up for yourself.

Every employee in South Africa should be aware of their rights as outlined in the Basic Conditions of Employment Act (BCEA).

Here's a detailed yet easy-to-understand summary of employee rights in South Africa:

WORKING HOURS AND OVERTIME:

Ordinary hours of work: An employer cannot require or permit an employee to work more than 45 hours in any week or 9 hours in any day if the employee works for 5 days or less in a week. If the employee works more than 5 days, they cannot work more than 8 hours a day.

Overtime: Overtime is work done beyond the ordinary hours of work. An employer may not require or permit an employee to work overtime except by agreement. Overtime must be paid at 1.5 times the employee's normal wage or the employee may agree to receive paid time off.

Compressed working week: An employee may agree in writing to work up to 12 hours in a day without receiving overtime pay, provided they do not work more than 45 ordinary hours in any week, more than 10 hours' overtime in any week, or more than 5 days in any week.

Averaging of hours: A collective agreement may permit the hours of work to be averaged over a period of up to 4 months. An employee may not work more than an average of 45 ordinary hours in a week over the agreed period or an average of 5 hours overtime in a week over the agreed period.

MEAL INTERVALS AND REST PERIODS:

Meal intervals: An employee must have a meal interval of 60 minutes after 5 hours of work. This interval can be reduced to 30 minutes or dispensed with if the employee works fewer than 6 hours on a day.

Daily and weekly rest periods: An employee must have a daily rest period of 12 consecutive hours between ending and recommencing work and a weekly rest period of 36 consecutive hours, which, unless otherwise agreed, must include Sunday.

PAY FOR WORK ON SUNDAYS, PUBLIC HOLIDAYS AND NIGHT WORK:

Sunday work: An employee who occasionally works on a Sunday must receive double pay. An employee who ordinarily works on a Sunday must be paid at 1.5 times the normal wage. Alternatively, an employee may agree to paid time off in return for working on a Sunday.

Night work: Employees who work at night between 18h00 and 06h00 must be compensated by payment of an allowance or by a reduction of working hours and transport must be available. An employee who regularly works at night must be informed of the associated health and safety risks, as well as their right to a medical examination.

Public holidays: An employer cannot require an employee to work on a public holiday unless the employee agrees. An employee who normally works on the day on which the public holiday falls and works that day must receive 2 times their normal wage. If they are not working that day, they must receive their normal pay. An employee who does not normally work on the day on which the public holiday falls and is working that day must be paid their normal wage plus their normal wage per hour for the hours worked. If a public holiday falls on a day on which an employee would normally work, and an employee is on annual leave, the employee is entitled to an extra day paid leave.

LEAVE:

Annual leave: Employees are entitled to 21 consecutive days of annual paid leave for every 12-month leave cycle.

Sick leave: During the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked. During each 36 months of employment, an employee who works for 5 days a week, is entitled to 30 days sick leave. An employee who works for 6 days a week, is entitled to 36 days sick leave in a 36 month cycle. Any sick leave taken during the first 6 months of employment, must be deducted from the 36 month leave entitlement.

Maternity leave: A female employee is entitled to at least 4 consecutive months of unpaid maternity leave. Maternity leave should commence not less than 4 weeks from the predicted due date, and the employee should not return to work prior to the 6 week period following the birth.

Parental leave: An employee, who is a parent of a child being born or adopted, is entitled to at least 10 consecutive days unpaid parental leave, to commence on the day that the employee’s child is born, or on the date that an adoption order is granted.

Family responsibility leave: Employees are entitled to 3 days of paid family responsibility leave per year for events such as the birth of a child, the death of a family member, or when a child is sick.

DEDUCTIONS FROM REMUNERATION:

Deductions: An employer may not make any deduction from an employee's remuneration unless the employee agrees in writing to the deduction in respect of a debt specified in the agreement, or the deduction is required or permitted in terms of a law, collective agreement, court order, or arbitration award.

Fair procedure: A deduction in terms of a debt must follow a fair procedure and the total deductions from the employee's remuneration in terms of this subsection must not exceed one-quarter of the employee's remuneration in money.

PROHIBITED CONDUCT BY EMPLOYERS:

Prohibited payments: An employer must not require or accept any payment by or on behalf of an employee or potential employee in respect of the employment of, or the allocation of work to, any employee.

Prohibited purchases: An employer must not require an employee or potential employee to purchase any goods, products, or services from the employer or from any business or person nominated by the employer.

INFORMATION AND RECORDS:

Particulars of employment: An employer must supply an employee with written particulars of employment, including the full name and address of the employer, the name and occupation of the employee, the various places of work, the date of employment, ordinary hours and days of work, wage or rate and method of calculating, rate for overtime work, any other cash payments, any payment in kind and the value thereof, frequency of remuneration, any deductions, leave entitlement, period of notice or period of contract, description of any council or sectoral determination which covers the employer's business, period of employment with a previous employer that counts towards the period of employment, and a list of any other documents that form part of the contract.

Informing employees of their rights: a summary of employees' rights under the BCEA must be displayed at the workplace in official languages used at the workplace.

Keeping of records: Every employer must keep a record containing the employee's name and occupation, time worked, remuneration paid, date of birth if under 18 years of age, and any other prescribed information.

Receipt of documents: An employee is entitled to receive a written contract of employment, payslips, proof of UIF registration, and a record of leave taken and wages paid.

TERMINATION OF EMPLOYMENT:

Notice periods: When an employee resigns, they must give notice based on how long they’ve been employed. If the employee has been employed for 6 months or less, only 1 week notice is required. If the employee has been employed for more than 6 months but less than a year, 2 weeks’ notice is required. If the employee has been employed for 1 year or more, or the employee is a farm worker or domestic worker employed for 6 months or more, 4 weeks’ notice is required. Notice must be given in writing and cannot be given during any period of leave to which an employee is entitled to.

Remuneration: Remuneration for an employee’s accrued annual leave is payable upon termination. If an employee is dismissed for reasons based on the employer’s operational requirements, an employee is entitled to severance pay amounting to at least 1 week’s remuneration for each completed year of continued service.

Unfair dismissal: Every employee has the right not be unfairly dismissed. A dismissal is only considered to be fair if an employer can prove that the reason was a fair reason, and the dismissal was effected in accordance with fair procedure. The Labour Relations Act lists various reasons for termination that are considered automatically unfair.

WORKPLACE REPRESENTATION:

Trade unions: A trade union is a group of employees who join together to protect their rights and interests at work, often dealing with working conditions, payment terms, and disputes with employers. Trade representatives at your place of employment can enter into collective agreements on behalf of the employees which they represent, which binds union and non-union members.

Bargaining councils: Bargaining councils consist of employers and trade unions often negotiating and enforcing agreements about working conditions in a specific sector. These agreements can also be extended to non-union workers.

COMPLIANCE AND ENFORCEMENT:

Labour inspectors: Labour inspectors may issue compliance orders to employers who do not comply with the BCEA. Failure to comply with a compliance order can result in the order being made an order of the Labour Court and may lead to fines.

Dispute resolution: Employees have the right to dispute resolution mechanisms, including the Commission for Conciliation, Mediation and Arbitration (CCMA), to address any grievances related to their employment, should their concerns not be adequately addressed by internal dispute resolution mechanisms.

Understanding these rights is crucial for employees to ensure they are treated fairly and in accordance with the law. If an employee feels their rights have been violated, they should seek assistance from the CCMA, the Department of Labour or a relevant trade union.

Whether you’re hiring your first employee or managing a growing workforce, Van Zyl Scheepers Attorneys can help you stay compliant and confident. From employment contracts and policies to dispute resolution and disciplinary processes, we’ve got you covered.