Labour Law

EMPLOYMENT LAW IN SOUTH AFRICA:

A BASIC GUIDE

Introduction

All employers have a duty to comply with labour laws in relation to their employees. The two main pieces of legislation which require compliance with are the Labour Relations Act and the Basic Conditions of Employment Act.

Well drafted contracts of employment are of crucial importance as they regulate the relationship between employers and employees. Employment contracts entered into must be in line with labour laws. In this basic guide, we break down the key aspects of employment law. These topics require compliance and must be taken into consideration when structuring employment in your business. 

1. Days and hours of work

• Employers may not require employees to work more than 45 hours a week and nine hours in any day if the employee works for 5 days or fewer in a week, or 8 hours in any day if the employee works more than 5 days in a week.

• For overtime work, the employee must be paid one and a half times the employees wage.

• An employee is entitled to 1 day off for every 5 days worked.

• An employer must allow an employee a daily rest period of at least 12 consecutive hours between ending and recommencing work the next day. If the employee resides on the premises, the daily rest period may be reduced (by agreement) to 10 hours.

2. Breaks

• The employee is entitled to 30 minutes break for every 5 hours worked.

• The employee is entitled to 1 hour break if they work continuously for more than 5 hours at a time. An agreement may reduce the break to 30 minutes.

• If the employee works less than 6 hours a day, the meal interval may be removed by agreement.

3. Sunday work

• An employer must pay an employee, who works on a Sunday, double the employee’s wage for each hour worked, unless the employee ordinarily works on a Sunday in which case the employer must pay the employee at one and one-half times the employee’s wage for each hour worked.

4. Night work

• Night work means work performed after 18:00 and before 06:00 the next day.

• An employer may only require or permit an employee to perform night work, if Specifically agreed.

5. Public holidays

• An employer may not require an employee to work on a public holiday except in accordance with an agreement.

• If a public holiday falls on a day on which an employee would ordinarily work, the employer must pay double the wage that the employee would ordinarily have received for work on that day.

6. Annual leave

• The employee shall be entitled to 21 working days’ annual leave to be taken at such time/s, as have been arranged and agreed with the employer.

• The annual leave cycle is every 12 months following commencement of employment. Alternatively, the employer may grant the employee 1 day leave for every 17 days worked.

• Annual leave is paid leave and furthermore, annual leave may not be included in the day off which an employee receives every week.

• The employer may require prior considerable notice of paid leave as per agreement.

• Leave not taken within 6 months of the expiry of the annual Leave Cycle will be forfeited.

7. Sick leave

• The employee will be entitled to 30 working days paid sick leave over a 3 year period calculated from the commencement of such Sick Leave Cycle. A maximum of 1 day’s paid sick leave for every 26 days worked may be taken in the first 6 months of the Employee’s employment.  Sick leave, over and above the employee’s entitlement, may only be granted at the Employers discretion. 

• If the employee becomes permanently unable to perform their duties adequately for reasons of ill health or incapacity, the employer may terminate employment after a thorough investigation.

• The employee will be required to submit a medical certificate for any medical period of absence exceeding 2 consecutive days or on more than two occasions during an 8 week period.

8. Family responsibility leave

• Upon accruing 4 months continuous service, the employee shall be entitled to 3 days paid leave during each cycle of 12 months of employment. Family responsibility leave may be taken at the birth of a child, sickness of a family etc.

• Family responsibility leave should not be misconstrued as maternity leave.

9. Remuneration

• With effect from the 1^st of March 2024, the current minimum wage is R 27.58 (TWENTY SEVEN RANDS AND FIFTY-EIGHT CENTS) per hour (the minimum wage is amended by gazzette annually).

• The above minimum wage excludes allowances such as transportation, bonuses, accommodation or meals.

10.  Probation

• Following commencement of employment, the employee may be placed on probation for a certain period of time should the employer so require in order to ascertain whether such employee is fit for employment.

• The employment contract will regulate the period of probation and procedure of termination of employment during probation.

11.  Termination of employment

• Termination of employment must follow the statutory guidelines and would be provided for in the employment contract. However, in order to terminate a contract of employment, there must be procedural fairness and substantive fairness, which means that there must be a proper reason (example: theft) and the proper procedure must be followed such as warning letters and disciplinary hearings.

• The above should always be in writing signed by the employer and a copy sent to the employee, signed and received.

• Should the employer be forced to terminate employment with an employee due to operational requirements, then the employee shall be entitled to severance pay which is calculated based on the employee’s length of service and remuneration.

Conclusion

There are various aspects to account for when employing and the above is only a summary of the main points to be taken into consideration.

Also one should bear in mind other factors which affect the legality of Employment Contracts, for example, PAYE, UIF, and if the Employee has a valid Work Visa in terms of the Immigration Act if the employee is not a citizen of the Republic of South Africa.

Legal advice should always be sought in order to avoid unnecessary referrals to the CCMA or worse, the Labour Court.

Having a contract of employment in place protects the rights of employers and employees.

At Essy Attorneys Inc. we pride ourselves with well drafted, comprehensive and fully compliant contracts of employment so you don’t have to worry about that nightmare referral!

Contact us today by telephone, email or Whatsapp to arrange a consultation.