Employment Law in South Africa

The Republic of South Africa is made up of nine provinces. Provincial governments have authority to legislate in certain areas but employment law is solely the competence of the central Government.

The Constitution (adopted in 1996 following the establishment of majority rule) gives all workers trade union and strike rights, along with a right to “fair labour practices”. It also guarantees equality and protection against discrimination on numerous grounds and provides for affirmative action in favour of people from disadvantaged groups.

The main items of employment legislation are the Basic Conditions of Employment Act (BCEA) and Labour Relations Act (LRA). The BCEA deals with matters including written particulars of employment, payment of wages, working time, rest breaks/periods, annual leave, sick leave, maternity leave, other parenthood-related leave, family responsibility leave and notice periods. The LRA regulates issues such as unfair dismissal, unfair labour practices, trade unions, collective bargaining, strikes, workplace representation, fixed-term contracts and part-time work. A feature of the BCEA and LRA is that certain provisions — eg in relation to working time, rest breaks/periods, fixed-term contracts, temporary agency work and part-time work — do not apply to employees who earn in excess of a certain threshold (ZAR 205,433.30 per year in 2020). Also, employees who work less than 24 hours a month are not covered by many of the BCEA’s protections and entitlements.

Other key employment laws are the National Minimum Wage Act, Employment Equity Act (EEA) and Occupational Health and Safety Act. Statutory Codes of Good Practice play an important role in guiding the detailed application of legislation, especially the BCEA, LRA and EEA. Case law, notably of the labour courts and Constitutional Court, interprets employment legislation.

Other sources of regulation of the employment relationship include sectoral determinations, collective agreements and employment contracts. Sectoral determinations are binding documents issued by the Government that set pay and conditions for employees in certain industries. Collective bargaining occurs principally at industry level, often in officially recognised bargaining councils.

This topic refers to employment law in the private sector only.

• Many protections and entitlements under employment legislation do not apply to employees who earn in excess of a certain threshold (ZAR 205,433.30 per year in 2020) or work less than 24 hours a month. Summary

• Employers must comply with employment equity and anti-discrimination legislation in their recruitment and selection methods and practices, and respect job candidates’ right to privacy, while medical and psychometric testing are subject to specific restrictions. Recruitment and Selection

• Probationary periods should be determined in advance and be of reasonable duration, with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment. Recruitment and Selection

• Foreign nationals cannot generally be employed unless they have been granted a relevant visa, such as a general work visa or a critical skills work visa. Recruitment and Selection

• An employment contract may be written or oral but an employer must give employees working at least 24 hours per month a written statement of the main particulars of their employment. Employment Contracts

• Fixed-term contracts are permitted and are subject to specific statutory restrictions — eg in terms of their duration and the circumstances in which they may be used — only in the case of employees who earn below a certain threshold. Employment Contracts

• Employers must generally pay employees their remuneration (accompanied by a written payslip) in South African currency — daily, weekly, fortnightly or monthly — and in cash, by cheque or by direct deposit. Pay and Benefits

• Almost all workers are entitled to be paid at least the statutory National Minimum Wage (NMW) while sectoral determinations set binding minimum pay rates that exceed the NMW in some industries. Pay and Benefits

• In general, employees’ normal working time must not exceed 45 hours per week and nine hours per day, and they must not work more than 10 hours of overtime per week (overtime generally attracts a pay supplement of at least 50%); however, by agreement, employees’ working hours may be calculated on average over a reference period or they may work a compressed working week. Working Time, Rest and Holidays

• Employees must generally be granted a meal interval of at least 60 minutes after five hours’ continuous work, a daily rest period of at least 12 hours and a weekly rest period of at least 36 hours (usually including Sunday). Working Time, Rest and Holidays

• Employees are generally entitled to at least three working weeks of paid annual leave. Working Time, Rest and Holidays

• Pregnant employees are entitled to four months’ maternity leave while working parents may also take paternity-type leave (10 days), adoption leave (10 weeks) and surrogate commissioning parent leave (10 weeks); in all cases, the leave is unpaid but the employee is generally entitled to state benefits. Parenthood and Work-life Balance

• Many employees are entitled to take three days of paid family responsibility leave per year, in the event of their child‘ sickness or the death of a close relative. Parenthood and Work-life Balance

• Employees are generally entitled to six weeks of paid sick leave in every three-year period. Parenthood and Work-life Balance

• Discrimination in relation to employment is prohibited on grounds of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground. Equality and Discrimination

• “Designated employers” (those with 50 or more employees or annual turnover above a statutory threshold) must implement certain affirmative action measures for black people, women and people with disabilities. Equality and Discrimination

• Harassment based on any of the protected characteristics is unfair discrimination, while employers have specific responsibilities to prevent and deal with sexual harassment. Equality and Discrimination

• A difference in pay between employees performing the same or substantially the same work or work of equal value that is directly or indirectly based on any of the protected characteristics is unfair discrimination. Equality and Discrimination

• Employees have a right to set up and join trade unions and are protected from discrimination for various trade union-related reasons, while representative unions have various rights at workplace level. Industrial Relations and Collective Rights

• Collective agreements reached by statutory bargaining councils cover many sectors, while governmental “sectoral determinations” set pay and conditions in some other industries. Industrial Relations and Collective Rights

• Employees have a right to strike, if certain conditions are met. Industrial Relations and Collective Rights

• Employers have a general duty to provide, as far as is reasonably practicable, a working environment that is safe and without risk to their employees’ health and safety, and have numerous specific obligations in this area. Occupational Health and Safety

• Dismissals for certain reasons are automatically unfair, while other dismissals are unfair if the employer fails to prove that the reason is a fair one related to the employee’s conduct or capacity, or based on the employer’s operational requirements and that a fair procedure was followed. Termination of Employment

• Employers and employees must observe minimum statutory notice periods of one to four weeks, depending on length of service. Termination of Employment

• Employees dismissed for reasons based on their employer’s operational requirements are entitled to statutory severance pay. Termination of Employment

• Employees have a right not to be subjected to certain unfair labour practices by their employer. Other Key Issues