Employee rights
2008-04-30 15:29
South Africans celebrate Workers Day on May 1 along with the rest of the world, as employees across the globe get a day off work.
The public holiday has its roots in the international labour movement and stretches back to the 1886 Haymarket Riots in Chicago, where striking workers were attacked by police.
The issues of fair working conditions still remain relevant to South Africans today, and News24 asked Roger Brown, an attorney at Labour Protect, a few questions about workers' rights.
Maximum hours
1. What are the maximum hours a person can work each week?
The maximum number of ordinary hours of work are 45 hours in any week; and nine hours on any day if the employee works for five days or fewer in a week; or eight hours in any day if the employee works on more than five days in a week. Often employment contracts, for those earning over R149 736, state that the employee would be expected to work overtime but receive no additional compensation for these additional hours. Such employees should negotiate better terms in their contracts if they are not happy with such an arrangement.
Misconceptions
2. What common misconceptions do employees have about labour laws?
Probably the most common misconception is that employees believe they have the right to an increase in salary or bonus each year. This is seldom the case as the employer can usually choose to pay out a bonus or increase the salary depending on how the company has done or whether they feel that rewarding the staff will improve the morale of the staff and indirectly, the profits of the business.
3. What would you say are the most important laws and rights that employees tend to be ignorant about?
Internal Grievance Procedures are not followed. Most employees are not aware that they can raise issues that they are not happy with, with their employers through an Internal Grievance Procedure. This is usually a written communication to the employer that they feel something is not right. This gives the employer the opportunity to address the issue internally before the employee takes the matter outside of the organisation for redress or attention.
Harassment
4. What should a person do if they feel they're being harassed for any reason?
Keep a record of all incidents; taking notes of dates and times, potential witnesses and details of what took place. Verbally confront the harasser. In the first instance react informally and speak to the harasser directly. If possible take a witness with you. If this does not rectify the situation, you could make a formal complaint following the normal complaint/grievance procedure set up in the workplace. Report the matter to the appropriate person at work.
If you are a member of a union or employee's association, contact your shop steward or representative. If you are not a union member, contact the company's Human Resources Manager or someone else in a position of authority, like your supervisor or senior manager. If you work in a small business, and the above options are not open to you, contact the CCMA (Commission for Conciliation, Mediation and Arbitration) for assistance regarding your rights in terms of the labour laws.
5. If you believe you have been unfairly dismissed, what recourse to justice do you have?
Refer the matter immediately to the CCMA (or Bargaining Council if there is one in your industry). Don't delay as the referral must take place within 30 days or the CCMA will refuse to set the matter down for hearing without first considering an application asking for forgiveness for not submitting on time.
Pay
6. What do you do if you believe you're being underpaid/being paid less than your colleagues?
Salaries are based on the value you bring to the organisation and not necessarily what your colleague is getting. Make yourself irreplaceable and make it known that you will not stick around unless you are paid what you are worth. I have never heard an employee complaining that he is paid too much. Most employees feel that they would like a better salary.
However the salary pie is limited and has to be split up with all the employees so everyone is fighting for a larger slice. It is however up to you to ensure that you are getting what you are worth. If however discrimination is taking place, see a lawyer immediately.
7. What is the legislation, if any, around retrenchment packages?
Retrenchment packages are normally negotiated or calculated by the employer. Severance pay, on the other hand, is calculated as one week's pay for every completed year of service. The organisation may offer more but it is not a requirement for them to do so.
8. How should an employee be compensated for working on a public holiday?
Public holidays are paid at the rate of double pay if one is required to work on that day. In terms of section 2(2) of the Public Holidays Act, 1994 (Act No. 36 of 1994), a public holiday is exchangeable for any other day which is fixed by agreement or agreed to between the employer and the employee.
Family
9. Does a company have to pay a woman when she is on maternity leave?
The Unemployment Insurance Fund (UIF) is responsible to pay staff while they are on maternity leave (subject to their calculations and rules.) Credits are given to the worker as they work and contribute to the Fund. For every six days you have worked you get one day's credit up to a maximum of 238 days. To build up the maximum credits you have to work for four years. If you have worked for less than 238 days you can claim for the number of days credits you have built up.
In the past, everyone received a fixed benefit of 45% of his or her salary (up to the set maximum). This has changed - now benefits are calculated on a sliding scale dependent on your salary. The benefit rates range from 38% for the highly paid workers (earning more than R97 188 per annum, R8 099 per month or R1 869 per week) to 58% for the lowest paid workers. Some employers agree to pay employees on maternity leave the shortfall in salary since UIF does not pay out the full salary for this period.
10. What is family responsibility leave?
An employee who has been with an employer for longer than four months and who works for at least four days a week for the same employer may take three days paid family responsibility leave during each year of employment. The reason for this leave is restricted to attending to the following events; when the employee's child is born; when the employee's child is sick; in the event of the death of the employee's spouse, life partner, parent, adoptive parent, grand parent, child, adopted child or brother/sister.
Go to the Labour Protect website or the Department of Labour's website for more information.