Legal Matters: Employee Protection in the Workplace

Own Your Job Rights

By Raine St.Claire

March is Human Rights Month in South Africa, underscoring the significance of the rights embedded in the nation’s Constitution. These rights, crucial in both public and the workplace, form the bedrock of a fair and thriving society. They ensure not only safe working conditions but also provide individuals with the opportunity to contribute to an economically resilient community. This acknowledgment of human rights is vital in fostering an environment where every person can play a part in the country’s progress and prosperity.

These are the rights you are entitled to as an employee:

The Right To A Fair Wage

The South African government has set a national minimum wage (NMW), which sets a baseline for earnings across all sectors. An increase to the minimum wage is effective from 1 March 2024 by 8,5% from R25.42 to R27.58 for each ordinary hour worked and applicable to all farmworkers and domestic workers.

Employees working on an expanded public works programme or workers engaged through learnerships are also excluded from the general NMW increase. The minimum wage for workers employed on an expanded works programme will increase from an hourly rate of R13.97 to R15.16.

The increased minimum wage will not apply to members of the South African Defence Force, the National Intelligence Agency, the South African Secret Service, and volunteers; all of whom are excluded for the ambit of the wage of the National Minimum Wage Act, 2018.

Workers who have concluded learnership agreements in terms of section 17 of the Skills Development Act, 1998, will be entitled to the increased allowances announced by the Minister, which range from R415.07 to R2421.13 a week, depending on the learner’s NQF level and number of credits earned by the learner.

A Word Of Caution

It is illegal and unfair labour practice for an employer to unilaterally change working hours or other employment conditions to implement the NMW. The NMW is the amount payable for ordinary hours of work and excludes payment of allowances (such as transportation, tools, food, or lodging), payments in kind (board or lodging), tips, bonuses and gifts. – Labour Guide South Africa

Dismissal on Short-Term Sick Leave

Legislation sets a maximum working time of nine hours per day (excluding lunch) for most employees on a five-day week, with a weekly cap of 45 hours. Beyond this, employees can claim overtime compensation. Workers are entitled to a minimum of 21 consecutive days (or 15 working days) of annual leave on full pay, accrued at one day for every 17 days worked. Sick leave is granted at a rate equal to the employee’s normal working days over a 36-month cycle..

Preventing Discrimination

The Constitution prohibits unfair discrimination in employment policies or practices. Preventing discrimination involves taking proactive measures and implementing policies to ensure fair and equal treatment for all individuals, regardless of characteristics:

• Inclusive environment promoting diversity

• Enforce anti-discrimination policies

• Education and awareness programmes

• Actively promote diversity and inclusion

• Promptly address discriminatory behaviour

• Ensure equal opportunities and rights

• Foster a culture of dignity and respect

• Zero tolerance for discrimination

Right To Organise

Section 23 of the Constitution provides that everyone has the right to fair labour practices, and every worker has the right to form and join a trade union, to participate in the activities and programmes of a trade union, and to strike (Republic of South Africa, 1996). Employees can voice complaints to trade union representatives, who, at the employee's request, can inspect relevant employment records.

Trade unions have autonomy in determining administration, programmes, and activities, as well as the right to organise, form and join federations and engage in collective bargaining. For an action to be considered a strike under South African and International law, it needs to meet three basic criteria: work environment for everyone to prevent unnecessary harm, illness and loss.

Ensuring Safe Working Conditions

People are crucial assets in any organisation, and they deserve a safe and healthy workplace. The Occupational Health and Safety Act (OHSA) (Act 85 of 1993) was created to ensure this. Its main goal is to proactively establish and uphold a safe work environment for everyone to prevent unnecessary harm, illness and loss.

The OHSA outlines employer obligations for worker health and safety:

• Safe work environment: Provide a hazard-free workplace

• Training: Offer adequate training for risk awareness

• Safety equipment: Supply necessary safety tools

• Emergency procedures: Establish and communicate accident response plans.

• Health monitoring: Conduct assessments for occupational health risks

• First Aid facilities: Ensure access and train first aid personnel

• Personal Protective Equipment (PPE): Supply and enforce personal protective equipment

• Policies: Implement and communicate safety policies.

• Risk assessments: Regularly identify and mitigate hazards

Compliance: Ensure adherence to health and safety regulations

Sources: Sabinet | Gov.za | Labour Guide |OHSA