OVERTIME PAYMENT - ARTICLE OF INTEREST

 

Overtime is regulated by Section 10 of the Basic Conditions of employment act. For employees who earn below the threshold of R205 433.30 per annum will receive overtime once their ordinary hours of work per day is completed.  Section 9 of the Basic conditions of employment act discusses ordinary hours of work and states as follows that an employer may not require or permit an employee to work more than:

(a) 45 hours in any week; and

(b) nine hours in any day if the employee works for five days or fewer in a week; or

(c) eight hours in any day if the employee works on more than five days in a week.

 

Therefore, according to section 9 an employer may not force an employee to work overtime except in circumstances where there is an agreement in place, an employee must agree to work overtime and cannot agree to work in excess of the maximum overtime hours as stipulated in the Basic Conditions of Employment Act. If an employee ordinarily works 8 hours a day that employee will be entitled to overtime pay once he has completed 8 hours of work, an example of this would be where an employee ordinarily works 8 hours in a day however has worked 10 hours on a particular day, that employee will be entitled to 2 hours overtime pay regardless of whether or not he has worked 45 hours in a week. Section 10 of the Basic Conditions of Employment Act further states that an employee may not work in excess of 12 hours in a day and further may not work in excess of 10 hours’ overtime in a week.

 

If an employee works overtime that employee will be entitled to be remunerated as follows;

An employer may, by agreement, compensate the employee for the overtime worked at the prescribed rate of:

(a)  1.5 times the normal wage; or

(b)  pay the normal wage and grant 30 minutes time off (on full pay); or

(c)  grant the employee at least 90 minutes time off for each hour of overtime worked.

Therefore, if an employer decides to grant the employee time off for the overtime worked, such time off must be granted to the employee within one month of the employee becoming entitled to it, this period can be increased to 12 months by agreement.

 

Employees who earn above the current threshold of R205 433.30 per annum should be paid at their normal hourly rate for the hours of overtime worked in the absence of an agreement to the contrary. Therefore, employee’s earning above the threshold do not enjoy the protection of the Basic Conditions of Employment act in respect of ordinary hours of work and overtime pay.

 

RESIGNATION WITH IMMEDIATE EFFECT  -  ARTICLE OF INTEREST

 

When an employee resigns without notice the employer asks the question of whether or not they can claim from the employee for the notice period that the employee did not serve or alternatively if they can withhold money due to the employee.

 

The Labour Court in SA Music Rights Organisation Ltd v Mphatsoe had to deal with the above questions. The facts of the case are as follows, the employee Mphatsoe’s contract stated that his contract of employment was terminable on one calendars months’ notice. Mphatsoe returned from leave on 8 January 2008 and served his notice of resignation stating that he gave notice and he would leave on 8 February 2008. The employer advised the employee that his notice period did not comply with the contract of employment and further stated that his notice period will therefore run from 1 February 2008 to 29 February 2008. The employee conceded that his notice period would not expire on 31 January 2008 and he stated that it would terminate on 8 February 2008.

 

The employer then approached the Labour Court for an order in terms of section 77 (3) of the Basic Conditions of Employment Act, stating that Mphatsoe’s notice on 8 January was ineffective to terminate his employment contract.

 

The employer sought damages to the amount of R8 185,12, namely, the amount Mphatsoe would have received in remuneration had he remained in employment until 29 February.

 

The court dealt firstly with the question of a “calendar month”, the court agreed with Camrie  AJA in Edgars Consolidated Stores Ltd v Federal Council of Retail and Allied Workers Union (2004) 25 ILJ 1051 (LAC) who held that a “calendar months’ notice” does not necessarily start on the first day of the month.  What is required is to ascertain the intention of the parties.

 

The court held that the word “month” in these cases, did not necessarily mean that it needed to run from the first of the month to the last.  However, by using the terms “calendar month” in the notice clause, the parties had clearly intended a different meaning, namely, that notice would take effect from the first day of the month and run to the last. Therefore the employee breached his contract of employment.

 

In respect of the damages claim, the court held that the applicants claim has its roots in the previous 1983 Basic Conditions of Employment Act. Which provided that an employee could avoid working their notice period by paying the employer an amount equal to the remuneration he would have received during the notice period.

 

The current Basic Conditions of Employment Act does not contain a similar provision, thus an employer that is claiming damages for an employee that hasn’t worked his/her notice period must prove such damages.

 

The court stated that in certain circumstances the breach could result in no damage been caused to the employer, however in some instances the damage caused could exceed the remuneration the employee would of earned.

 

The employer in this case failed to prove any damages due to the employees breach and therefore the court dismissed the case. It is therefore clear that the amount for damages for short notice may be held back if:

1) The employer can prove the damages; and

2) The contract of employment provides for such deduction.

 

It is therefore a two pronged test that the employer must prove the damages and that the contract of employment provides for such deduction, thus if the contract doesn’t provide for same then the employer risks having to pay back the withheld amount. The best route to adopt is to approach the court to claim damages against the employee.