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EMPLOYEE AND EMPLOYER RIGHTS

Employment relationships are built on trust and the rights of parties. Employees and employers have very specific rights in terms of common law and labour legislation. Balancing these rights is extremely important and pivotal in a fair and successful employment relationship.


General employee rights


Employees have the following rights:

Not to be unfairly dismissed or discriminated against

  • To be provided with appropriate resources and equipment

  • To have safe working conditions

  • To receive the agreed remuneration on the agreed date and time

  • To receive fair labour practices

  • To be treated with dignity and respect

  • To non-victimisation in claiming rights and using procedures

  • To leave benefits and other basic conditions of employment as stipulated in the Basic Conditions of Employment Act (BCEA) and or Main Collective Agreement or Sectoral Determination.

These are some of the general rights of employees. The essence of a safe working environment does not only relate to reasonable steps to protect employees from physical harm caused by what may be called physical hazards, but it includes the duty of the employer to protect employees from psychological harm, such as harassment.


Employee rights – BCEA

In terms of section 78 of the BCEA, the employee is entitled to the following legal rights:

1. Every employee has the right to:

  • Make a complaint to a trade union representative, a trade union official, or a Labour inspector (designated agent) concerning any alleged failure or refusal by an employer to comply with this act, collective agreement, or sectoral determination;

  • Discuss their conditions of employment with their fellow employees, their employer, or any other person (this includes remuneration);

  • Refuse to comply with an instruction that is contrary to this act, collective agreement, or sectoral determination;

  • Refuse to agree to any term or conditions of employment that is contrary to this act, collective agreement, or any sectoral determination;

  • Inspect any record kept in terms of this act that relates to the employment of that employee;

  • Participate in proceeding in terms of this act;

  • Request a trade union representative or a Labour inspector (designated agent) to inspect any record in terms of this act and that relates to the employment of that employee.

2. Every trade union representative has the right, at the request of an employee, to inspect any record kept in terms of this act that relates to the employment of that employee. Subsection (1)(b) above can cause a problem, because “conditions of employment” includes matters like salary, wages, salary or wage increases, bonuses, and so on. Employers may not prohibit employees from discussing matters such as salary, wages, etc. with fellow employees, because the right to do this is a legal entitlement bestowed upon the employee by an Act of Parliament, and the employer has no authority to deprive an employee of a legal entitlement bestowed upon that employee by any law.


3. Section 79(2) of the BCEA goes on to state as follows that no person may discriminate against an employee (including a former employee or an applicant for employment) for exercising a right referred by this part, and no person may do or threaten to do any of the following:


(a) require an employee not to exercise a right conferred by this part;

(b) prevent an employee from exercising a right conferred by this part; or

(c) prejudice an employee because of a past, present, or anticipated:

  • Failure or refusal to do anything that an employer may not lawfully promote or require an employee to do;

  • Disclosure of information that the employee is lawfully entitled or required to give to another person; or

  • Exercise of a right conferred by this part.

4. No person may favour, or promise to favour, an employee in exchange for the employee not exercising a right conferred by this part. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle the dispute.


Employer rights

  • To expect employees to render the agreed services on the agreed days and times

  • To expect employees to perform under their authorisation

  • To carry out all work instructions and obey all reasonable and lawful instructions issued

  • To expect employees to display good behaviour in the workplace (to comply with company policy and procedure, and to comply with company disciplinary code and procedure, and to behave in the workplace in a manner acceptable in the norms of society)

  • To expect employees to act in good faith, be loyal, and have the best interest of the employer at heart at all times

  • To expect employees to follow workplace rules, company policies and procedures, and work performance standards

  • To expect employees to strive honestly towards work objectives, and to expect employees to adhere to product specifications and quality standards

  • To expect employees to use the employer’s prescribed resources and methods

  • To expect employees to report to them any dishonest or unlawful practices in the workplace, including any breaches of company policies and procedures.


This last expectation is a difficult one, because usually if an employee notices fellow employees conducting themselves in a dishonest manner, or engaging in dishonest practices in the workplace, such as theft and so on, the employee will turn a blind eye and look the other way. They will do this simply because if they make a report to the employer, their lifespan will suddenly become very limited, and their general state of health may suddenly become a source of concern due to no fault of their own. If the employees perpetrating the dishonesty find out that they have “blown a whistle”, they will be certain to extract revenge on them either by personal injury, injuring or assaulting their family, or in some other way causing personal injury or damage to property, even to the extent of loss of life. Thus, the employee cannot really be blamed if they do not report such “going on” to the employer, and the employer must be certain to take into account the personal circumstances of the employee.


On the other hand, the failure of the employee to report dishonesty in the workplace to the employer could in fact make them an accomplice to the fact, or, in legal terms, an “accessory to the crime.” The common law duty to act in good faith towards the employer flies out of the window and the employer is faced with the difficult decision as to whether it is going to start charging witnesses for failing to report misconduct or to come forward with information and evidence.



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