Question 1:
An employee is a natural person with legal rights and duties, that renders a
service to another natural or juristic person, for the purposes of receiving money
and other additional benefits for the service rendered. This money received is
called a fixed remuneration or salary.
An independent contractor is a person rendering a service for the purpose of
receiving money in return. An independent contractor does not gain benefits
(Barter, 2022) and is not covered by the Basic conditions of employment Act.
Question 2:
There are several labour laws in South Africa. The purpose of these labour laws is
to ensure that all workers are treated equally, receive equal opportunities and
that there is a smooth run in the relationship between employees and employers
(Contributor, 2021).
Facts that are in accordance with Labour Legislation:
Working for 6 days a week
According to Basic Conditions of Employment Act (Laister, 2021) an
employee may work 5 days or 6 days a week, as long as the employee
does not work more than 45 hours a week. If the employee works more
than 45 hours, then it should be seen as overtime and he or she must be
rewarded for the extra time worked.
Not being paid for overtime on normal working days
Overtime refers to working more hours than agreed in employment
contract (Turnbull, et al., 2010, p. 1080). To calculate overtime of an
employee, the employee’s normal wage is multiplied by 1.5 and by the
number of hours worked, when working overtime on Mondays- Saturdays.
When working on a Sunday, overtime will be calculated by multiplying 2
by the normal wage and number of hours worked.
According to section 6 of the Basic Conditions of Employment Act (Tech,
2019) overtime payouts only apply to employees that earn less than
R224 080,48 per annum. Anyone earning more than R224 080,48 per year
is excluded from receiving overtime.
Annual leave of 21 consecutive days
In a 12month cycle an employee is obliged to 21 days full remuneration
annual leave. While employees make use of their leave days, they must
still be paid their full remuneration.
Annual leave applies to all employees except for casual workers such as
seasonal workers that work on farms during harvest season.
30 days sick leave per 36-month cycle
Every employee is entitled to 30 sick leave days in a 3-year period.
Facts that are not in accordance with Labour legislation:
Being paid 3 times more than normal wage when working on
Sundays/Public holidays
According to the Basic conditions of Employment (Claassen, n.d.) , when
working on Sundays or public holidays, an employee must be paid 2 times
their normal per hour worked.
Not getting time off with birth/adoption of a child
Every father is entitled to 10 unpaid parental leave days for when a child
is born or in the process of legally adopting a child. After these leave days
the employee may claim or request benefits from the UIF (Loubser, 2020).
Working overtime if he wishes to
An employee may not work overtime out of his own will, it should be
included in the contract of employment to avoid any confusion with
regards to it
Two unpaid family responsibility leave days.
Every full-time employee is entitled to 3 paid family responsibility leave
days annually. These leave days are for emergencies such as a parent’s
child fell sick, or a family member passed on/family funeral. It is not
frequently requested therefore it is fully paid.
Work 9 hours a day
According to BCEA working 9 hours a day is allowed, only if the employee
works 5 days a week. The total hours worked will then add up to 45 hours
for a week if the employee works 9 hours per day for 5 days. In this
scenario it has been said that Mr.Apollo needs to work 6 days a week, 9
hours a day, which will add up to 54 hours of work per week. This is not in
accordance with the Labour legislation because an employee may only
work for 45 hours per week.
30 minutes lunch and 15 minutes tea break
Every employee that works for more than 5 hours a day is obligated to get
a meal interval/lunch break for at least 1 hour. If the employee works for
less than 6 hours, then his or her meal interval may be reduced to 30
minutes. These lunch breaks will help employees gain strength and restore
their energy.
Question 3:
15 Smith Street
Johannesburg
Riverlea
2579
4 June 2024
From: TTOU attorneys (Legal advisors)
To: Mr. Apollo
Dear Mr. Apollo,
I hope this letter finds you well.
I wish to render my considered legal opinion over the following matter:
Issues:
1.Working 9 hours a day, 6 days a week
2.Not being paid for overtime
3.Working any amount of overtime if he wishes to
4.Not being given time off with birth/adoption of a child
5. Two unpaid days family responsibility leave
Working 9 hours a day, 6 days a week
According to the Basic conditions of employment Act, it is stated that an
employee may not work for more than 8 hours a day, when working 6 days a
week. If an employee works 6 days a week, the employees working hours should
be 8 hours per day. If the employee works more than 8 hours, it should be
considered as extra hours worked, also known as overtime. This will also mean
that the employee will work 54 hours a week. 6 of these 54 hours should then be
seen as overtime.
Not being paid overtime
Overtime pay is of the essence for every employee, as it is work done in hours
other then working hours. An employee must receive remuneration for every
extra hour worked. When employee worked extra on Monday - Saturday,
overtime should be calculated by multiplying 1.5, normal wage and the total
hours worked. When employee worked on a Sunday or public holiday his
overtime should be calculated by 2, normal wage and the total hours worked.
References
Barter, H., 2022. Barter Mckellar. [Online]
Available at:
https://www.bartermxkellar.law/employment-law-explained/understanding-the-
distinction-between-employees-and-independent-contractors-isouth-africa?
format=amp
[Accessed 3 June 2024].
Claassen, A., n.d. Labour Guide. [Online]
Available at: https://labourguide.co.za/employment-condition/pay-for-work-on-
sundays
[Accessed 6 June 2024].
Contributor, C., 2021. What are the functions of Labor Laws?. [Online]
Available at: https://smallbusiness.chron.com/functions-labour-laws-61595.html
[Accessed 6 June 2024].
Laister, B., 2021. Woriking times and the BCEA, Durban North: BC Accounting.
Loubser, C., 2020. New parental leave entitlements in effect, Cape Town:
Bowmans.
Tech, S. W. a. B., 2019. What employees need to know about overtime pay in
South Africa, Lyttelton: Business Tech.
Turnbull, J. et al., 2010. Oxford Advanced Learner's Dictionary. 8 ed. New York:
Oxford.
