Frequently Asked Questions:

Sourced from the Dept of Labour Inspector's Toolkit. ©

How many hours per week can I make my employees work ?

The maximum normal time allowed (section 9 BCEA) is 45 hours weekly. This is 9 hours per day (excluding lunch break) if the employee works a 5-day week, and 8 hours per day (excluding lunch break) if the employee works more than 5 days per week.

This does not mean that employees must work  45 hours per week normal time. The amount of normal time worked is a  matter of contractual agreement between employer and employee. Some employers work a 40 – hour week, and so on.

The statutory limitation of 45 hours per week means that the employee may not work more than 45 hours weekly normal time.

Lunch break is unpaid time and is the employee's own time – he/she can read a book, go shopping, etc because they are not paid for lunch breaks.

Therefore an employee who works a 5 days week and who receives a lunch break of 1 hour daily will actually be at the workplace for 50 hours weekly (45 hours normal working time and 5 hours daily lunch breaks.)

The lunch break is to be provided after 5 hours continuous working time. Tea breaks do not qualify as a break in working time.

The statutory lunch break is 1 hour, but by  agreement between employee and employer this may be reduced to 30 minutes.

How much overtime can I stipulate that my employees must work ?

All overtime is voluntary and may only be worked by agreement between employer and  employee.

Maximum permissible overtime is 3 hours on any one day or 10 hours in any one week. Remuneration must be at 1,5 times the normal wage rate except for Sunday work and work on Public Holidays, which must be remunerated at twice the normal wage rate.

Time off, calculated on the same formula, may be granted instead of payment, but only by agreement with the employee.

Employees who earn in excess of the present threshold of R115,572-00 per annum are not subject to the provisions of section 10 (Overtime) of the Basic Conditions of Employment Act.

This means that such employees cannot demand  to be paid for overtime worked, nor can they demand to be granted time off in lieu of payment.

However, contrary to popular belief, the employer also cannot force such  employees to work overtime or cannot demand that they work overtime without compensation.

All forced labour is prohibited in terms of section 48 of the BCEA, and should the employer require such employees to work overtime then the hours to be worked and the basis of compensation must be negotiated with the employee.

Should the employer refuse to compensate for overtime worked, then the employee is entitled to refuse to work the overtime.

What is regarded as "overtime worked"?

All hours worked in excess of the employee's normal hours of work will be regarded as overtime hours.

Therefore, if your employee is contracted to work 45 hours per week normal time, then any hours in excess of that is overtime worked.

Similarly, if your employee is contracted to work 40 hours per week normal time, then any hours in excess of 40 hours is overtime worked.

Can I force employees to work overtime on short notice ?

No, you cannot. Overtime is not compulsory, and employees can refuse to work overtime on short notice.

However, an employee cannot refuse to work overtime if the work which is required to be done must be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision (such as the sudden breakdown of equipment) and which cannot be performed by employees during their ordinary hours of work.

(Refer section 6 (2) BCEA )

Is it compulsory to have a written contract of employment?

No. However, every employer must comply with section 29 and Chapter 4 of the BCEA, which requires that the employer must provide certain particulars of employment in writing to the employee.

Can I force employees to sign documents or agreements or force them to perform tasks not generally job-related ?

No you cannot. The employee would have a right of action at the CCMA for unfair labour practice.

Must I always consult with employees on changes to terms and conditions of employment?

Yes you must. The Employment Contract (verbal or written) is, by its very nature, an agreement between two people. As such, the agreement cannot be unilaterally changed by one party without the agreement of the second party to the agreement.

If that does happen, then the party forcing the change has in fact terminated the contract – which places that party in breach of contract, thus affording the other party a right of action to restore the status quo.

May I change hours of work or lunch break times without consulting the employee ?

No you may not. All changes to terms and conditions of employment must be discussed with the employee first, and agreement reached if possible. If no agreement can be reached, and the proposed change is reasonable, necessary, fair and equitable, then the employer would probably be justified in forcing the change.

What steps must I take if I wish to dismiss an employee?

Notice of termination of the employment contract must be given in writing as per section 37 of the BCEA.

Proper dismissal procedures must be followed. A dismissal is only fair if it is effected after following a fair procedure and the dismissal id for a fair reason.

There are 3 kinds of fair dismissal : misconduct, incapacity (poor performance or ill health) and retrenchment. Each has its own specific procedure that must be followed. Some reasons for dismissal are automatically unfair, such as a dismissal on grounds of pregnancy.

All employers should adopt disciplinary rules and establish standards of conduct, and corrective or progressive disciplinary procedures must be followed. It is essential that procedures followed in dismissing employees should provide the employee with proper opportunity to state his/her case.

The employer should familiarize himself with Schedule 8 of the Labour Relations Act – The Code of Good Practice – Dismissal.

What will happen if I dismiss an employee for absconding and then he/she maintains that they have been dismissed without notice or without proper procedure?

If the employee wishes to dispute the fairness of the dismissal, they should register the dispute with the appropriate dispute resolution body – the CCMA or Bargaining Council.

Can I dismiss an employee immediately if he arrives at work drunk and he is fully aware that this is forbidden in terms of Company rules?

No you cannot. In all cases of dismissal, proper and fair procedure must be followed and the dismissal must be for a fair reason.

Even if justifiable substantive reasons exist for the dismissal, a fair procedure must still be followed before dismissal takes place. Refer to Schedule 8 of the Labour Relations Act – The Code of Good Practice – Dismissal.

When can an employee be regarded as having absconded?

After a period of 5 days has elapsed, and the employee has not contacted the workplace to advise the reason for the unauthorized absence or the expected date of return to work, it may be justified to presume that the employee has absconded.

However, the employer must make genuine efforts to contact the employee by registered letter, telegram or telephone, to try and establish the reasons for the absence. Should those efforts fail and the reason for the absence remains uncommunicated, then dismissal may be justified. An important element is that the employer must have reasonable justification to believe that the employee has no intention of returning to work.

Is there any legislation that protects the interests of the employer by preventing employees resigning as they wish after the employer has spent time, money and resources to train the employee?

No legislation binds employee to stay with an employer for any particular period after training at the employer's expense.

However, this could be controlled by contractual agreement with the employee and by Company policy.

My employee arrived at work 30 minutes late. Can I send him home for the day without pay?

No – this amounts to imposing a disciplinary sanction without following a fair procedure.

If the employee is sent home at your instance, then you must pay him for the day.

Can I deduct notice money from the employee if he does not give me the contractual or statutory period of notice?

Yes you can.

What if he doesn't have enough money for me to deduct the amount from?

You would have to sue civilly.

Can employer's deduct damage costs from salaries of employees or impose fines for sloppy work or damages?

No. Deductions may not be made without the written consent of the employee, or a Court Order permitting that deduction.

Can employers delay payment of wages, salaries etc if there are problems such as cash flow or customers not paying the employer on time?

The employer's cash flow problems or problems with non-paying customers are not the employee's problems.

remuneration must be paid on the date and in the manner agreed upon by both parties in the Employment Contract. If the contractual pay date, place, method and time is not adhered to, then the employee would have a right of action at the CCMA or Bargaining Council.

The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za