Employees have many rights and responsibilities that are enforceable by law. Employee rights protect workers from hazardous workplace conditions, employer discrimination and other circumstances that threaten an employee’s safety and well-being. Although there are different types of law governing employees, (e.g. the Labour Relations Act, Basic Conditions of Employment Act and Income Tax Legislation), definitions of an employee are pretty similar. Broadly speaking, an employee is generally assumed to be under the control or direction of an individual who is either the employer or who works for an employer.
An employer-employee relationship is presumed to exist when a person works 40 hours or more per month, on average, for more than three months or is financially dependent on the employer. If the employer supplies tools of trade or equipment to carry out work in this situation then it would likely be viewed as an employment relationship. In such cases, the Basic Conditions of Employment Act lays out what employee rights consist of.
Who is an employee?
A person who:
- is under the supervision and control of an employer, forms part of an organisation, or has carried on work for the employer for at least 40 hours per month for the last 3 months;
- receives remuneration from the employer;
- provides skill and labour to perform the work of the employer – the employer provides the work equipment and training where necessary; and
- has an employment agreement with an employer which specifies the details of an employee’s rights and duties in writing.
If you work for your employer for less than 24 hours per month, you are not entitled to the same rights as those who work more than 24 hours per month.
What are the rights of an employee?
The rights and duties may be decided by the parties as long as they remain within the boundaries of the law and the collective agreements.
An employee, in terms of the law, has a right to (These rights change from industry to industry, so you must check relevant sectoral determinations and bargaining councils in your sector):
- work a maximum of 45 hours a week or 9 hours a day (8 hours a day if the employee works 6 or 7 days a week);
- work overtime of no more than 10 hours a week (not more than 12 hours of work a day), and an employee who works overtime must receive one and a half times the daily wage (including a person who ordinarily works on a Sunday) or double the daily wage for working on a Sunday or a Public Holiday;
- take a 30/60 minute break after 5 hours of work – if an employee works less than 6 hours a day s/he may forfeit the lunch break;
An employee, in terms of the law, has a right to receive:
- annual leave and sick leave;
- family responsibility leave of 3 days over a year for when an employee’s child is born or is sick; the employee legally adopts a child; or for the death of the employee’s spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild, or sibling; and
- maternity leave of no more than 4 months, with or without remuneration as agreed to, and the employee must not work within 6 weeks from the date of the birth of her child;
- claim money from the unemployment insurance fund if the employee does not receive her full salary during maternity leave;
- receive a written payslip;
- work in a healthy and safe environment;
- be protected from sexual harassment, including touching, rude suggestions, dirty talking, pornography, indecent exposure, or similar conduct, and victimisation;
- not be forced to have an HIV test unless the Labour Court authorises one;
- be received by the employer into service; and
- receive a certificate of service upon leaving employment.
What are the duties of an employee?
An employee’s duties are to:
- have a healthy employment relationship with his/her employer;
- co-operate with the employer and obey lawful instructions, rules and procedures;
- be respectful, honest and obedient;
- act in good faith to the employer such as not divulging confidential information;
- refrain from misconduct or face possible dismissal. Examples of misconduct include dishonesty; drunkenness or hangovers; gross negligence; physical assault; revealing of trade secrets;persistent idleness; and damage to the employer’s property;
- enter into and perform services;
- guarantee that s/he is capable of performing the tasks agreed to and to carry them out with efficiency and without negligence;
- further the employer’s business interests by not allowing personal interests to conflict with the employer’s interests such as being employed with a competing business;
- not tamper or remove safety objects at the employer’s premises;
- report unhealthy or unsafe conditions; and
- provide notice of termination of the employment agreement.