Who is an employee?
- A person who:
- is under the supervision and control of an employer, forms part of an organisation, or has carried on work for the employer for at least 40 hours per month for the last 3 months;
- receives remuneration from the employer;
- provides skill and labour to perform the work of the employer - the employer provides the work equipment and training where necessary; and
- has an employment agreement with an employer which specifies the details of an employee's rights and duties in writing.
What are the rights of an employee?
- The rights and duties may be decided by the parties as long as they remain within the boundaries of the law and the collective agreements.
- An employee in terms of the law has a right to:
- work a maximum of 45 hours a week or 9 hours a day (8 hours a day if the employee works 6 or 7 days a week);
- work overtime of no more than 10 hours a week (not more than 12 hours of work a day), and an employee who works overtime must receive one and a half times the daily wage (including a person who ordinarily works on a Sunday) or double the daily wage for working on a Sunday or a Public Holiday;
- take a 60 minute break after 5 hours of work - if an employee works less than 6 hours a day s/he may forfeit the lunch break;
- An employee in terms of the law has a right to receive:
- annual leave of 21 days a year or 1 day for every 17 days worked;
- sick leave of 6 weeks over a 36 month period;
- family responsibility leave of 3 days over a year for when an employee's child is born or is sick; the employee legally adopts a child; or for the death of the employee's spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild, or sibling; and
- maternity leave of no more than 4 months, with or without remuneration as agreed to, and the employee must not work within 6 weeks from the date of the birth of her child;
- claim money from the unemployment insurance fund if the employee does not receive her full salary during maternity leave;
- receive a written payslip;
- work in a healthy and safe environment;
- be protected from sexual harassment such as from touching, rude suggestions, dirty talking, pornography, indecent exposure, or similar conduct, and victimisation;
- not be forced to have an HIV test unless the Labour Court authorises one;
- be received by the employer into service; and
- receive a certificate of service upon leaving employment.
What are the duties of an employee?
- An employee's duties are to:
- have a healthy employment relationship with his/her employer;
- co-operate with the employer and obey lawful instructions, rules and procedures;
- be respectful, honest and obedient;
- act in good faith to the employer such as not divulging confidential information;
- refrain from misconduct or face possible dismissal;
- examples of misconduct include dishonesty; drunkenness or hangovers; gross negligence; physical assault; revealing of trade secrets; persistent idleness; and damage to the employer's property;
- enter into and perform services;
- guarantee that s/he is capable of performing the tasks agreed to and to carry them out with efficiency and without negligence;
- further the employer's business interests by not allowing personal interests to conflict with the employer's interests such as being employed with a competing business;
- not tamper or remove safety objects at the employer's premises;
- report unhealthy or unsafe conditions; and
- provide notice of termination of the employment agreement.
- CONTROL: an employer can determine or limit an employee's work situation, for example the employer determines the employee's hours of work.
- REMUNERATION: payment such as a salary, medical aid or transport.
- EMPLOYMENT AGREEMENT: there are 2 parties called the employer and the employee where they must have an employment agreement which must contain the parties full names and residential addresses; a brief description of the work of the employee; place of employment; date the employment begins; how the employment terminates; hours and days of work; the amount of remuneration to be paid, when it will be paid, and how it is calculated; cash payments and deductions; rate/s of overtime; benefits the employee is entitled to such as maternity leave, relocation costs, and payment from the unemployment insurance fund; leave allocated; a description of the relevant collective agreement or sectoral determination; other conditions such as producing an identity document to the employer; a list of documents that should form part of the agreement; and other rights (for example an employee's right to a join a trade union), duties (for example an employee's duty to act honestly), and legal consequences (for example go to arbitration if a party breaches the agreement).
- COLLECTIVE AGREEMENT: a written agreement of employment or another matter of mutual interest concluded by one or more registered trade unions and one or more employers.
- SECTORAL DETERMINATION: means an industry or sector that has its own set of rules, for example, taxis, contract cleaning services, domestic workers, clothing and knitting, civil engineering, learnership, wholesale and retail, farm workers, hospitality and private security.
How can LegalWise help you?
- advise you on whether you are an employee;
- provide you with a guideline of an employment agreement;
- interpret your employment agreement if you do not understand it; and
- explain your rights and duties as an employee.