8 Basics of Employee Rights
Employee rights have been subject to increasing protection since the Labour Relations Act of 1995 was introduced. This law, along with its amendments and other legislation has certainly done much to improve the rights of all workers in South Africa. However, the dynamics of different rules for different industries, employees and situations has made for confusion, even in the Labour Courts themselves.
What is an employee?
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.
The Basic Conditions of Employment Act (BCEA) states that:
Employees should be informed of their rights one of South Africa’s official languages and a summary of the BCEA kept and displayed at every workplace.
Employers must keep records (e.g. a wage register and attendance register), which are subject to inspection by a labour inspector.
Written particulars of employment must be given to the employee.
Employees have a right to receive a certificate of service.
Employee rights must be displayed in the required form at the workplace in the majority language at the workplace.
Records should be kept for three years, from the date of the last entry. Records must include the employee’s name and occupation, time worked, remuneration paid to the employee and their date of birth if they are aged under 18.
Employees are entitled to a payslip containing the employee and employer names and addresses, the period for which the payment is made, the employee’s occupation, the actual amount paid and the amount and purpose of any deduction made from the remuneration.
Where appropriate, employee deductions must be made correctly and fairly – for example, if an employee agrees in writing to repay a debt to the employer by regular salary-deducted instalments. However, if the debt is deemed to have been incurred because of loss or damage to the employer, it may be necessary to seek advice on whether any debt has actually been incurred.
Most commonly, disputes about whether a person is an employee or not occur when an allegation of unfair dismissal is made. In such cases, unless agreement is reached beforehand, the CCMA can examine the circumstances of the relationship and decide whether a state of employment did indeed exist.
The law goes on to deal with employee rights in great detail, depending on factors such as the nature of employment, industry and type of employer. Furthermore, some employees, such as defence force staff and domestic workers, are not afforded the same rights as others.
Where there is any doubt, we always recommend you consult with us first to be sure that employee rights are protected correctly.