Labour law

WORKING HOURS AND LEAVE RIGHTS Working hours: An employer may not require or permit an employee to work more than 45 hours in any week and 9 hours in any day if the employee works for more than 5 days or fewer in a week. This requirement does not apply to work, which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work. Employees earning in excess of R115 572 per annum is excluded from this provision. Annual leave: The employee is entitled to 21 consecutive days paid leave per year, including weekends but excluding public holidays in respect of each period of 12 months completed service with the employer, or 15 working days in respect of the same period. Alternatively, by agreement, the annual leave can be calculated at 1 day of paid vacation leave for every 17 days the employee had worked, or was entitled to be paid, or 1 hour of paid vacation leave for every 17 hours the employee had worked, or was entitled to be paid. Sick leave: During each sick leave cycle of 36 months' employment with the employer, the employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. For example, if the employee works 5 days a week the number of paid sick leave days will be 30 over a period of 36 months. During the first 6 months of employment, the employee shall be entitled to 1 day's paid sick leave for every 26 days worked. An employer is not required to pay an employee for sick leave taken if the employee has been absent from work for more than 2 consecutive days or on more than 2 occasions during an 8 week period and, on request by the employer, fail to produce a medical certificate stating that the employee was unable to work. Maternity leave: An employee is entitled to at least 4 consecutive months unpaid maternity leave, which may commence 4 weeks before the expected date of birth or as certified by a medical practitioner. No employee may work for 6 weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit for work. Employees who had a miscarriage or a stillborn birth are entitled to 6 weeks maternity leave. The employee must notify the employer in writing at least four weeks in advance of the date on which she intends to commence her maternity leave and the date she intends to return to work after her leave. No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child. Female employees may apply for UIF from the Department of Labour in cases of unpaid maternity leave. An employer may not dismiss a female employee based on her pregnancy, intended pregnancy or any reason related to her pregnancy. Such dismissals are regarded as automatically unfair and may entitle the employee to compensation. Family Responsibility Leave An employee, who has been in employment with an employer for at least 4 months and who works at least 4 days a week for that employer, is entitled to 3 days paid family responsibility leave during each cycle of 12 months of employment with the employer. This could be taken when the employee's child is born or sick, or in the event of the death of the employee's spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. An employer may require reasonable proof of an event contemplated in this section for which leave is required. Family responsibility leave may form part of the employee's annual leave where an employer employs less than 10 permanent workers.

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CONTRACTS OF EMPLOYMENT An employer must provide an employee, when the employee commences employment, with written particulars of employment or a written contract of employment. The contract must contain the following particulars: The employer's full name and address; The name of the employee and his/her occupation and a short description of the work for which the employee is employed; The place of work and if the employee may be required or permitted to work at various places, an indication of this; The date of commencement of employment; The employee's normal hours of work and days of work; The employee's wage or payment rate and the method for calculating wages; The rate of pay for overtime worked; Any other cash payments to which the employee is entitled to; Any payment in kind that the employee is entitled to and the value of the payment in kind; How frequently remuneration will be paid; Any deductions that will be made from the employee's remuneration; The employee's leave entitlement; The period of notice required to terminate the employment, or if employment is for a specified period, the date when employment is to terminate; A description of any council or sectoral determination which covers the employer's business; Any period of employment with a previous employer that counts towards the employee's period of employment; A list of other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained. With the number of labour relations professionals in the market it is understandable that more and more employers are provided with or have access to standard types of employment contracts. There are specific pitfalls in using these standard contracts. Legislation changes on a regular basis and very often these contracts are outdated and employers may find themselves contravening legislation unknowingly. What may seem to be a standard contract of employment may have far reaching legal implications for employers since these contracts often exclude important aspects that define the relationship, rights and obligations between employer and employee. This is just as true for contracts for independent contractors. A contract for an independent contractor may in effect be an employment contract. An employer may find that he/she unwittingly appointed an independent contractor as an employee. In such a case the independent contractor will be entitled to the full protection and benefits as provided by employment legislation. A contract of employment may not reduce an employee's existing benefits. Labour.co.za drafts contracts of employment after consultation with the employer to ensure that all aspects that are necessary to define the relationship, rights and obligations between the employer and the employee are covered. We ensure that the contract deals with issues such as restraint of trade, the use of company property (such as business vehicles, telephones, equipment and tools), the employer's approach in dealing with poor work performance, ill health, misconduct and retrenchments, et cetera. For more information on this service you can contact our legal department at (012) 460 7330.

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