Conditions of Employment

 

 

On a regular basis, I receive e-mails from employees asking the question “What are my rights ?” I also receive similar enquiries from employers – asking what the employee’s rights are. Employees have certain general rights. These may not necessarily be entrenched in labour law, but come from basic human rights issues, the Constitution, common law and in some case, from legislation.



To start with, every employee has the right :

  • Not to be unfairly dismissed
  • To be treated with dignity and respect 
  • To be paid the agreed wage on the agreed date and at the agreed time 
  • To be provided with appropriate resources and equipment to enable him/her to do the job 
  • To have safe working conditions 
  • To fair labour practices 
  • To non-victimisation in claiming rights and using procedures 
  • To all the protection and benefits of the Basic Conditions of Employment Act. 



Those are some of the rights arising out of common law, case law etc. 
There are other rights which are in fact, entrenched in the Basic Conditions of Employment Act – specifically in section 78, and employers would do well to be familiar with the provisions of that legislation.

 

In terms of section 78, every employee has the right : 

  •  to make a complaint to a trade union representative (shop steward) a trade union official or a labour inspector concerning any alleged failure or refusal by an employer to comply with the BCEA. For example, the employee has the right to refer a dispute to the Dept of Labour if the employer refuses to pay or compensate for overtime worked. 



The following may come as a surprise to some employers : 

  •   to discuss his/her conditions of employment with his/her fellow employees, his/her employer, or any other person;  This means that an employer cannot prevent an employee from discussing his/her benefits, including salary or wages, or conditions of employment, with other employees. 

 



The legislation further provides that the employee has the right: 

  • to refuse to comply with an instruction that is contrary to the BCEA or any sectoral determination;
  • to refuse to agree to any terms or condition of employment that is contrary to the BCEA or any sectoral determination;
  • to inspect any record kept in terms of the BCEA that relates to the employment of that employee; 


This means that the employee is entitled to inspect his/her personal file kept in HR to see what it contains. 

  • to participate in proceedings in terms of the BCEA;
  • to request a trade union representative(shop steward) or a labour inspector to inspect any record kept in terms of the BCEA and that relates to the employment of that employee;
  • and every trade union representative(shop steward) has the right, at the request of an employee, to inspect any record kept in terms of the BCEA, that relates to the employment of that employee.  



It can be seen that list is quite long – employers should be aware of what rights are bestowed on the employee, and employers would be wise not to obstruct or deny the employee any of these rights. 

For further information, contact

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

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