Employee rights in South Africa - Labour Law Article

Employee Rights in South African Labour Law

South Africa has one of the most comprehensive labour laws in the world. It covers various aspects of employment, including minimum wages, working hours, leave entitlements, employee benefits, dispute resolution, and more. 

South Africa’s labour laws safeguard workers’ rights, promote equal job prospects, and ensure just labour policies. Moreover, the country has a robust system of labour courts and tribunals, vital in enforcing these laws.

Our labour law is something to be proud of, but it can be complicated to navigate in the workplace. Therefore, our article will summarise your legal rights as an employee.

Know Your Contractual Rights

The employment contract is paramount regarding labour law and an employee’s rights. 

Although the law does not explicitly mandate employees to possess a written contract of employment, it is always preferable to do so for the following reasons:

  • Firstly, in the event of any disputes concerning working hours, leave, remuneration, and other related matters, the terms and conditions of employment are reduced to writing, making it substantially easier to resolve such disputes.
  • Secondly, a written employment contract protects employees from disputes related to the nature of their relationship with their Employer. It is not uncommon for such disputes to arise, and having a written contract can help avoid such disagreements.
  • Lastly, a written employment contract condenses your rights into one uniform document, which can help ensure clarity and consistency.

Understand Your Basic Conditions

The Basic Conditions of Employment Act (BCEA) is a crucial piece of South African labour law legislation. It highlights the terms and conditions that should be contained in an employment contract. 

Some critical parts of the Basic Conditions of Employment Act include:

  1. Working hours: The act sets out the maximum hours an employee can work per week, as well as breaks and rest periods.
  2. Annual leave: The BCEA provides employees with a minimum of 15 working days of annual leave per year.
  3. Sick leave: The act also provides a minimum of 30 days of sick leave for every three-year employment cycle.
  4. Maternity leave: Female employees are entitled to four months of maternity leave, while male employees are entitled to 10 consecutive days of paternity leave.
  5. Notice periods: The act stipulates the notice periods that employers and employees must give when terminating a contract of employment.
  6. Overtime: Employers must pay employees who work overtime at least 1.5 times their standard hourly rate.
  7. These are just a few of the important parts of the BCEA. The act aims to protect the rights of employees in South Africa and ensure that they are treated fairly in the workplace.

See the Basic Conditions of Employment here.

Navigating Disputes and Litigations

Disciplinary processes may become necessary when trust has been compromised in a working relationship. Employees must be aware of their rights to protect themselves during any litigation. 

During a disciplinary hearing, an employee has the following rights:

  • The charge(s) that have been formulated are specific and concise; otherwise, how will an employee prepare for a hearing?
  • That an employee is entitled to request specific documents from the Employer that may assist the Employee in preparation for the hearing;
  • An employee may call witnesses to testify, but another issue is whether they want to testify. For the sake of this article, assume that they are willing. During the hearing, an employee must be able to cross-question (cross-examine) these witnesses to the fullest extent possible to create doubt on the Employer’s case;
  • An employee has the right to be represented by a fellow employee or a trade union representative recognised by the Employer. The limitation of representation in a disciplinary hearing may be unconstitutional, depending on the circumstances. Some large employers have skilled and trained persons to conduct the hearing on behalf of the Employer, but the same cannot be said concerning the Employee. Most often, co-employees are reluctant to become involved in assisting a colleague;
  • The chairperson presiding over the hearing must be impartial and have no prior knowledge or information. As a general rule, it is doubtful whether chairpersons qualify with no impartiality or prior knowledge.

Approaching the CCMA

In the event of an unfavourable outcome in a disciplinary hearing, employees possess the ability to move forward with the referral of disputes to the Commission for Conciliation Mediation and Arbitration (CCMA)

The Labour Relations Act governs these disputes/rights, and we will also attempt to explain the most common disputes referred to the CCMA and an employee’s rights in terms of each dispute:

  • Dismissals (Sections 186 – 189) – Often, unfair dismissals are referred to the CCMA. Unfair dismissals can present in different forms – for example, being offered a less favourable contract than the Employee’s current one with the same Employer. In dismissal disputes, bear the onus in the CCMA to prove that the dismissal was fair in both the procedure and the reason(s) for the dismissal.
  • Retrenchments also classify under this umbrella, and so does an incapacity dismissal -e.g., for instance, an employee becomes ill or permanently disabled and is dismissed as a consequence thereof;
  • Unfair Labour Practice (Section 186) – These disputes seek to restore what was previously in effect. An example of this may be that an employee has been unfairly demoted or another employee has been unfairly promoted above another. Another example may be that a warning has been issued against an employee without procedure or substantial reason.

Know Your Rights With SB Lawyers

We have only touched on the topic of employee rights and their interaction with labour laws. Every case is unique and may overlap with the dispute category, emphasising its complexity. However, prevention is better than cure, and it is better to receive legal advice and better understand your fundamental rights now rather than when it is too late.

Contact SB Lawyers to get the legal support you need. We are here to equip employees with advice and legal action to ensure their rights are upheld in the workplace.

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