The BCEA (Basic Conditions of Employment Act) makes a few basic employee rights exceptionally clear. It deals with things like hours of work, leave, payment of remuneration, termination of employment, and methods of enforcement. Every employee should know their rights, and in fact, your place of employment should have a summarised copy of the BCEA on display for all staff members.
I would imagine that you are familiar with most if not all of these rights, but have a quick read through them anyway. It is always a great idea to refresh your memory and brush up.
A couple of basic employee rights as per the BCEA
1) To Remuneration Due
It is very simple. As long as an employee performs the service required of them they are entitled to be paid their salary or wages. Obviously an employer is well within their right to withhold payment if a staff member does not work. This does not apply to periods of leave (Which we discuss later) And yes, a strike does constitute non-performance and an employer does not need to remunerate striking employees.
If you have performed your duties and your employer is refusing to pay you your salary you will need to approach the labour court. If this is something you have had an issue with please check out my article on salary non-payment.
2)To Safe Working Conditions
Employees are entitled to reasonably safe working conditions and it is the employer’s responsibility to provide a safe and healthy working environment.
3) To Only Work Prescribed Hours
The BCEA states that an employer may not require an employee to work more than 45 hours in a week. Anything over this must be considered overtime. The act also states that employees must consent to working overtime and that the amount of overtime should not exceed 10 hours per week.
There are a number of exceptions to this and I could probably put together an entire article on prescribed working hours. If this interests you please let me know in the comments below.
4) To Annual Leave
All employees are entitled to annual leave at full pay. The amount of leave can be negotiated when signing the contract of employment, however, a minimum of 21 days per 12-month cycle is regarded as the minimum.
The method for calculating how much annual leave is owning to you is to calculate 1 day for every 17 days worked.
5) To Sick Leave
An employee is entitled to 1-day sick leave for every 26 days worked during the first 6 months. After this, the employee would have the number of days they usually work in a 6 week period available at any time during the next 3 years.
Employees must remember that sick leave works in a 3-year cycle. If you use up all your sick leave before the end of the cycle all other sic days will be counted as unpaid leave.
6) To Maternity Leave
One of the basic employee rights that has been added to the new BCEA is the right to 4 months of unpaid maternity leave. This leave may commence from 4 weeks before the expected due date.
7) To Family Responsibility Leave
Any employee who has been employed for longer than 4 months and who works 4 days a week or more for the employer is entitled to 3 days of family responsibility leave.
Family responsibility leave is paid leave and works on an annual cycle. An employer is well within their rights to ask for “proof” of events that required the staff member to take the family responsibility leave.
8) To prescribed days off
Employees should be given Sundays and public holidays off. Employees can only be asked to work on these days by agreement and the employer will be required to pay the employee at double their normal hourly rate.
It is also important to note that if the greater part of an employee’s shift falls on a Sunday or public holiday the entire shift must be calculated at double pay.
9) To Notice On Termination of Employment
If you work more then 24 hours for an employer in a month, then you are entitled to notice on termination of your contract of employment. Generally speaking, this period should be stipulated in the contract of employment. However, the standard notice required is at least 1 month’s notice in the first four weeks of employment. Two weeks after the first month, but before the completion of a year’s service, and after this at least 4 weeks’ notice.
It is possible for the employee to be paid in lieu of notice (In other words, paid for the notice period but not required to work)
10) To payments on Termination
When a contract of employment is terminated an employee is entitled to be paid for any overtime and Sunday work that was exchanged for days off not yet taken. They would also be entitled to any annual leave not yet taken.
If the reason for termination is retrenchment then there will be other payments that must also be made.
11) To Accommodation Under the Contract
Accommodation is not a basic employee right, however, if the employment contract provides for accommodation then this must be honored. When the employment contract is terminated then the employee would no longer be entitled to accommodation and may be evicted from the premises.
12) To Freedom of Association
All employees are free to join and participate in the activities of a trade union of their choice. The LRA (Labour Relations Act) prohibits any employer from discriminating against employees or job applicants for exercising this right.
Any provision in a contract of employment which attempts to limit this right will be deemed invalid.
13) To Enforce Statutory Rights
All the basic employee rights discussed here would be pointless if employers were able to victimize any staff member who attempted to apply their rights.
For this reason on of your rights is your ability to enforce your rights. Your employer may not treat you any differently because you have tried to enforce your rights or reported your employer for a failure to comply with these laws.
14) To Fair Labour Practices
All employees have the right to be treated fairly by their employers. This is not just a right under the BCEA or the LRA, this is a right entrenched in the Constitution of South Africa.
The current definition of “unfair labour practice” reads as follows:
(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
15) Not to be Unfairly Dismissed.
The LRA protects employees from being dismissed without a good reason. It essentially ensures that employees can remain in their employment for as long as they would like unless there is some good reason for termination.
What this essentially means is that employers can not simply rely on their contractual right to dismiss employees, instead, they must ensure that any workplace dismissal is substantively and procedurally fair.
16) To a Certificate of Service
The BCEA requires an employer to give a staff member a certificate of service when he/she leaves their job. This certificate should include the name and surname of the employee, start and end dates, job title, brief job description, and remuneration at the time of termination. The reason for the termination may also be included if the employee requests it.
A certificate of service is not the same as a reference.
An employer is not required by law to give a reference for any staff member. However, if they do decide to give reference it must be completely honest. If an employer gives a dishonest reference the next employer who relied on this reference is legally able to seek damages.
17) To Strike
This is another right that is entrenched in the constitution. That being said, there is a distinction between protected and unprotected strikes.
In order for a strike to be protected, it must comply with the act. Any employee who embarks on a protected strike will be protected from dismissal. If a strike does not comply with the act it will be deemed unprotected and it may be possible for the employer to dismiss the staff member.
Like I said at the start of this article, most of these basic employee rights are fairly well known and understood. However, if you are unclear on any of these rights and would like me to elaborate on one or two of them please let me know in the comments below.
I look very forward to hearing from you.
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