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The rights of an employee or employer come from many sources and one of the main sources as with many other laws come from Common law.

South Africa’s Common law is a mixture of Roman-Dutch law and English law. These sources have in turn been formalised by Legislation like the Basic Conditions of Employment Act, the Labour Relationship Act and others.

However, as times have changed so have our laws and with the many amendments to the Labour Relations Act as well as the Basic Conditions of Employment Act employers and employees may become confused on what are their most pivotal duties and rights are in respect of employment.

Here are some tips for you:

The Employee’s Duties:

  1. Services: An employee must make his/her services available to the employer within an agreed period of time. The actual services rendered will often be specifically described within the employment contract and the job specifications and requirements, however, oftentimes an employee’s services will include those duties that aren’t specifically described but are within the best interest of the business.
  2. Competence: An employee must act in accordance with their skills for which they were hired for. When undertaking to exercise that skill, an employee must do so with due diligence, and if not, that employee will be considered incompetent for the job.
  3. Good Faith: So much of the employer-employee relationship is based on the moral character of the employee. That relationship is built on honesty and moral conduct. An employee must act in accordance with what is in the best interests of the business instead of that of his/her own interests and for that reason misappropriation, misconduct and dishonesty cannot be tolerated.
  4. Subordination: This is an employee’s obligation to obey the employer’s commands. These commands, however, must be lawful and morally sound. An employee shouldn’t accept an order that makes him/her go against their moral character.

The Employers Duties:

  1. Remuneration: As discussed above, an employee will provide the employer with services in exchange for remuneration. This give and take relationship will continue in accordance with the employment contract and only in very rare circumstances will remuneration be withheld which will usually be due to a breach of the employment contract. However, even after summarily dismissing an employee an employer needs to follow the correct procedure according to the Code of Good Practice, Basic Conditions of Employment Act and the Labour Relations Act.
  2. Safe Working Environment: An employer must provide a reasonably safe working environment for his/her employees and according to Common law, the employer is delictually liable for any damages and injuries of an on-site or work-related accident.
  3. Provisions for Leave: According to the Labour Relations Act as well as the Basic Conditions of Employment Act an employer must grant his/her employee with vocational leave, family responsibility leave and sick leave (this will, however, vary from contract to contract between the parties).

An employment contract is an agreement between two parties (employer and employee) who hold themselves liable for the obligations as discussed, described and agreed to within that contract or agreement.

 

For more advice on your rights and obligations and any other labour related query contact our offices today at Charmaine@schwenninc.co.za or call us on 031 003 0630.

It’s that time of year where everyone is burnt out, getting sick and generally just trying to plan their holidays.  Do you understand your employment contract and how much leave you are entitled to?

Annual Leave

Let’s take a look at the types of leave an employee is afforded according to South African law:

 

 

Annual Leave:

According to the Employment Equity Act, an employee must be working more than 14 hours a month to be entitled to leave. A leave cycle is a period of 12 months during which you are entitled to 21 consecutive days of off with full remuneration. This is equal to  15 working days leave if you work a 5-day working week and 18 working days leave if you work a 6-day working week. You are entitled to roughly 1.25 days leave a month per cycle.

Should an employee not take their leave within 6 months after the end of the annual leave cycle then the employer cannot refuse to give the employee permission to take leave unless this has been agreed otherwise in their contract of employment.

 

Sick Leave:

Sick leave is a total of six weeks in every three-year cycle which is calculated from the first day of employment. For an employee who has a five-day working week this would equal 30 days full paid leave. However, during the first six months of employment, the employee is only entitled to take one-day sick leave for every 26 days worked. If you do not take your sick leave within that cycle you forfeit same.

If you are absent from work for more than two consecutive days then you have to produce a medical certificate to your employer.

 

Maternity Leave:

Maternity leave is for a period of four months and can start one month before the date of delivery of the baby. The employee legally cannot return to work for a period of six weeks after giving birth.

An employee must notify the employer in writing four weeks before the expected maternity leave commences and the date that they intend to return to work. During this leave, an Employer must keep that person’s job open for them to return. Your employer is not obliged to pay you during this time and you will be entitled to claim compensation from the Unemployment Insurance Fund.

 

Family Responsibility Leave:

Family responsibility leave is three days a year which is forfeited if not used within that year and is only available to employees who have worked for their employer longer then four months and work more then four days a week. Previously fathers were not afforded the same rights as mothers when their children were born but the new Labour Law Amendment Bill will since change same.

This type of leave can be taken when your child is born, sick or when a relative passes away, however, your employer may require proof that the event took place.

 

It is therefore important for employees to understand their rights with regards to their leave and their responsibility to follow the act as well as their employment contracts. If you have any questions regarding your employment contracts contact us today on 031 003 0630 or email us on info@schwenninc.co.za.