Your rights as a worker
Whatever job you do, you can run into problems at work. Sometimes these can be sorted out quickly by informal discussions with your employer. However, problems can sometimes turn serious in which case an informal chat is unlikely to help and either side may wish to follow a formal legal process.
Whenever a problem arise at work, it is important that you have a basic understanding of certain concepts such as your contract of employment, conditions of employment, grievance and disciplinary as well as retrenchment procedures etc.
A failure to comply with your contract of employment and/or all the relevant rules, regulations and standards set by the employer may have serious consequences.
The following is only a selection of the concepts in very broad terms. It is important that you familiarise yourself with these and others issues not covered here so that, when you are confronted with questions e.g about what happens when you lose your job, you can deal with it.
Please note that the law is often complicated. We cannot detail with everything you would find in a legal textbook. What we try and do, however, is twofold: Firstly to make you aware of some of the issues which will hopefully spur you on to learn more and secondly, to create the facility whereby you can contact us for more information.
Please note that while we have tried to keep the content below as accurate as we can, you cannot take a short introduction like this as a comprehensive statement of the law.
The essential elements of the employment contract can be summarized as follows:
- a voluntary agreement
- between two parties (employer and employee)
- in terms of which the employee places labour potential at the disposal and under the control of the employer
- in exchange for some form of remuneration by the employer
TERMS AND CONDITIONS OF EMPLOYMENT
Terms and conditions of employment normally include issues such as working hours, leave, sick leave, the length of notice of termination, remuneration, how and when the remuneration is to be paid and other duties of the employer and employee.
If the employer, without obtaining the agreement of the employee, changes an agreed term of employment, the employee may respond that the employer has breached the employment contract.
REGULATION OF WORKING TIME
ORDINARY HOURS OF WORK
According to Section 9 of the Basic Conditions of Employment Act, maximum working hours are 45 hours per week, and 9 hours per day (if the employee works for five days a week of less). Employees who work more than 5 days a week may only work for 8 hours a day.
MEAL INTERVAL AND REST PERIODS
If an employee works continuously for more than 5 hours, the employer must give the employee a meal interval of at least one continuous hour. During the meal interval, the employee may be asked to perform only the duties that cannot be left unattended and cannot be performed by another employee. An employee, must however, be remunerated for a meal interval in which the employee is required to work or if the employee is required to be available for work.
Section 10 of the Act provides that employees may only be required to work overtime in accordance with an agreement between employees and their employer, and that employees may not work overtime more than 10 hours a week.
SUNDAYS, PUBLIC HOLIDAYS AND NIGHT WORK
If an employee does not normally work on a Sunday and the employer requires the employee to work on a Sunday, the employee must be paid double his/ her hourly wage. If an employee normally works on a Sunday, the employer must still pay a premium – one-and-a-half time the employee’s wage for each hour worked (Section 16 of the BCEA).
An employer may not require an employee to work on a public holiday, unless the parties have agreed otherwise. If the employee does not work, he or she should be entitled to his/ her ordinary remuneration for that day. However, if the employee does not work on a public holiday, the employer must again pay the price, at least double the employee’s ordinary wage for every hour worked. (Section 18 of the BCEA)
“Night Work” means work done after 18:00 and before 06:00 the next day. An employer may only require or permit an employee to work at night if there is an agreement to this effect and if the employee is compensated by the payment of an allowance (or by a reduction of working hours), the employee may only work at night if transportation is available between the employee’s home and the workplace at both the beginning and the end of the employee’s shift. If public transport is available, this will be sufficient. The employer will only be obliged to provide transport in terms of section 17 of the BCEA, if there is no public transport at the beginning and end of the employee’s shift.
In respect of each annual leave cycle (a period of 12 months employment with the same employer), an employee is entitled to at least 21 consecutive day’s annual leave on full remuneration.
The employer and employee may also agree that the employee will be entitled to one day of paid annual leave for every 17 days the employee worked or was entitled to be paid.
The sick leave cycle is a period of 36 months employment with the same employer. During every sick leave cycle, an employee is entitled to six weeks paid sick leave.
MATERNITY AND FAMILY RESPONSIBILITY LEAVE
An employee is entitled to at least 4 consecutive month’s maternity leave. An employee must notify an employer in certainty, unless the employee is unable to do so, of the date on which the employee intends to commence her maternity leave and when she intends to return to work after maternity leave.
Section 27 of the BCEA also provides for 3 days paid family responsibility leave during each annual leave cycle. The employee is in terms of the BCEA, entitled to take this leave during the birth, illness or death of a child, the death of the employee’s spouse or life partner, parent, and other immediate family members. The employer may require reasonable proof of an event for which family responsibility leave was granted.
TERMINATION OF EMPLOYMENT
Section 37 of the BCEA provides for minimum notice periods (the employee and employer may agree to longer notice periods). The length of the minimum notice periods depends on the employee’s length of service.
If the employee has worked for only 6 months or less, he or she is, as a minimum, entitled to only one week’s notice of termination of employment. If the employee has worked for longer than 6 months but for less than a year, the minimum notice period is two weeks.
Four weeks notice of termination is the statutory minimum in the case of employees who have worked for an employer for longer than a year and for farm workers and domestic workers who have been employed for more than 6 months.
Notice of termination must be given in writing, except when it is given by an illiterate employee.
Section 41 of the BCEA provides for the payment of severance pay. If an employer dismisses an employee for operational reasons, the employer must pay the employee severance pay equal to at least 1-week’s remuneration for each completed year of continuous service with that employer.
Note: An employee who unreasonably refuses to accept the employer’s offer of alternative employment with that employer is not entitled to severance pay. An employee who refuses his or her old position with a change to their terms and conditions of employment therefore faces the real possibility of losing his or her entitlement to severance pay in terms of section 41 of the BCEA.
THE IMPORTANCE OF UNFAIR DISMISSAL LAW
PROTECTION OF THE EMPLOYEE
An employee has a fundamental right not to be unfairly dismissed.
TERMINATION OF THE EMPLOYMENT CONTRACT
Section 186(1)(a) describes a standard form of dismissal – the core of this form of dismissal being that the employer terminates the employment contract either by giving the employee notice of termination or by way of summary termination.
DISMISSAL FOR REASONS RELATING TO PREGNANCY
The BCEA now provides for 4 consecutive months maternity leave. It does not require that maternity leave should be paid, but it is possible for an employee to make a claim in terms of the Unemployment Insurance Act. Individual contracts of employment or collective agreements may provide for paid maternity leave by agreement.
Note: An important concession in the BCEA is that although no employee may be expected to work for the first 4 months after the birth of her baby, a medical practitioner or a midwife may certify that she is fit to work if she so wishes. The effect of section 186(1) (c) of the LRA and section 25 of the BCEA is to offer considerable protection for an employee’s security of employment for the period of her “maternity leave”.
An employer’s refusal to allow an employee to return to work after she has been on maternity leave (paid or unpaid), will now fall within the ambit of “dismissal” for the purposes of the LRA.
If an employee does not return to work within the period permitted by legislation, her contract or a collective agreement, the failure to return to work will probably be viewed as abscondment and the normal sanctions for such an act will apply.
The fact that an employer does not permit an employee to return to work after maternity leave means that the employee has been dismissed.
SECTION 197 TRANSFER OF EMPLOYMENT CONTRACTS
This new form of dismissal in the context of transfers of business was introduced in 2007. If an employee is transferred to a new employer in terms of these sections and the terms and conditions of employment are substantially less favourable than those provided by the old employer, the employee may terminate the contract and claim dismissal.
It would seem that the employer would not be able to justify such a “dismissal” and most disputes over this type of dismissal would depend upon whether the employer has in fact offered terms and conditions of employment which are less favourable.
DISCIPLINE AND DISMISSAL FOR MISCONDUCT
Section 188(1) (b) of the LRA requires that a dismissal for misconduct must be effected in accordance with a fair procedure. A fair procedure entails a fair disciplinary enquiry. The LRA does not prescribe a fair disciplinary enquiry – the employee’s disciplinary code and procedure usually prescribes the procedure to be followed and the manner in which the hearing should be conducted.
However, the Code of Good Practice: Dismissal provides a number of guidelines for a fair enquiry. These guidelines are contained in item 4 of the Code (Schedule 8 of the LRA)
Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a Bargaining Council with jurisdiction or to the Commission (CCMA) or to any dispute resolution procedures established in terms of a collective agreement.
If the employee is dissatisfied with the finding of the chairperson of the enquiry, the employee must first exhaust the internal appeal procedure before referring to the CCMA.
Any person who is determining whether a dismissal for misconduct is unfair should consider-
- Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace and
- If a rule or standard was contravened, whether or not –
- The rule was a valid or reasonable rule or standard
- The employee was aware, or could reasonably be expected to have been aware, of the rule or standard
- The rule or standard has been consistently applied by the employer; and
- Dismissal was an appropriate sanction for the contravention of the rule or standard.
The Gravity of the Misconduct
The seriousness of the misconduct is an important factor when the appropriateness of dismissal as sanctioned is considered. The more serious the misconduct, the greater the likelihood that dismissal will be the appropriate penalty. Theft, for example, constitutes a serious breach of the trust relationship.
DISMISSAL ON THE GROUNDS OF OPERATIONAL REQUIREMENTS
A dismissal on the grounds of operational requirements (retrenchment) is a no-fault dismissal as the dismissal rises because of the economic, technological or structural requirements of the employer’s business. The procedural requirements that must be followed in order for a retrenchment to be fair are stipulated in section 189 and 189A of the LRA, and envisage the active involvement of the trade union representative in the entire process.
The union representative must engage in joint consultation processes in order to determine whether the reason given by the employer for dismissing the employees is fair and constitutes a genuine operational requirement. Procedural requirements are inextricably linked to substantive fairness, as the failure to consult will prevent the union representative from determining whether the reason given by the employer is fair.
Employers may not use retrenchments to dismiss employees who have committed an act of misconduct or are incapable of performing their work, as vastly different procedures and considerations apply.
Union involvement in the consultation process must commence the moment the employer contemplates the possibility of retrenching employees. An employer who comes to the consultation process having pre-determined the retrenchment is in breach of the LRA. The employer is expected to retain an open mind during the consultation process.
The unions are expected to engage in a “meaningful joint consensus-seeking process” and must “attempt to reach consensus” (section 189(2)) on the issues under discussion. The union representative is expected to actively participate in the process and a failure to do so has been held by the Labour Court to constitute a waiver of the employee’s rights where genuine attempts by the employer to engage the union representative in the consultation process are rejected. (See NEHAWU v The Agricultural Research Council  9 BLLR 1081 (LC)) Delaying tactics on the part of the union have been regarded as bad faith. (See NUM v Crown Mines Ltd  7 BLLR 716 (LAC))
The consultation process must be of sufficient duration to enable the parties to properly engage in the joint problem-solving process.
AN AGENCY SHOP AGREEMENT
The Act permits registered representative trade union/s and employers to conclude an agency shop collective agreement, which requires the employer to deduct an agreed agency fee from the wages of employees identified in the agreement, who are not members of the trade union but are eligible, in terms of the trade union constitutions, for membership of the trade union.
The reason for having an agency shop agreement is that in many workplaces those employees who are not members of the trade union, and thus do not pay subscription fees, nevertheless receive the benefits of the trade collective bargaining power with an employer. This occurs when the union and the employer are bound by the collective agreements concluded between them, or the employer, for the sake of convenience, extends the provisions of the collective agreement that it has concluded with the union to non-union members.
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