Delivery drivers rest on the flat beds of their electric tricycles during lunch time in an underpass in Beijing. Picture: Reuters
Like an employee must take holidays in terms of The Basic Conditions of Employment Act, the employee has to have rest periods and meal intervals.

The legislation specifically outlines these compulsory times off because of an employee’s health. On a regular basis I get approached by employees and trade unions who ask for permission to not take their holidays but to get paid instead. The reasoning is that many employees need the money and would rather have the cash instead of taking the leave.

Not only is this illegal, but it is incredibly injurious to one’s health. I am acutely aware that people need the money and many employees are, to a large degree, underpaid. However, the employer would get into enormous trouble by letting employees cash in their leave and work throughout the year.

It is also important to understand that meal intervals are vital to every single employee. An interval of at least one continuous hour must be granted to the employee after five hours’ continuous work. However, by written agreement the interval may be reduced to a period of not less than 30 minutes.

In some cases, by written agreement, the lunch hour can be dispensed with completely for a person who works less than six hours in any one day. This agreement must be reduced to writing and signed by both parties.

It is vital for an employer to keep this agreement on the records in case there is a complaint at a later stage. There are often investigations by the Department of Labour Inspectorate who want to know why people have been working through their lunch, and on many occasions staff themselves raise the issue.

Obviously, essential duties may be performed during the meal interval. It is a difficult concept to prove that something is essential but if, in fact, the employee is specifically trained and specialised in a specific task and this can’t be performed by another employee, then one can understand that that employee would have to perform that extra work and must be paid separately for it. In other words, an employee must be paid for any portion of a meal interval that is worked.

In terms of The Basic Conditions of Employment Act Section 14(3): “An employee must be remunerated for a meal interval in which the employee is required to work or is required to be available for work, and for any portion of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the workplace is situated.”

Over and above this, an employer must allow a daily rest period of at least 12 consecutive hours and a weekly rest period of 36 consecutive hours. These 36 consecutive hours normally include a Sunday unless it is otherwise agreed between the employer and the employee. The only way in which an employer can reduce the daily rest period to 10 hours is for an employee to agree in writing to same.

The weekly rest period can be adjusted, by written agreement, to be a period of at least 60 consecutive hours every two weeks, or reduced by up to eight hours in any week if the rest period in the following week is extended equivalently.

If there is any leave outstanding to an employee during the employee’s notice period, then this leave must be paid out with his or her last salary.

It must be remembered that the minimum amount of annual leave is 21 consecutive days on full remuneration per each annual leave cycle. This can be calculated, by agreement, to mean one day of annual leave on full pay per every 17 days worked, or one hour of annual leave for every 17 hours worked.

The employer must grant an employee that leave not later than six months after the end of the annual leave cycle. This also means that an employer may not require or permit an employee to take annual leave during any other period of leave to which the employee is entitled to in terms of The Basic Conditions of Employment Act (including any period of notice of termination of employment).

Most importantly, an employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee’s annual leave on which the employee would ordinarily have worked.

* Michael Bagraim is a labour lawyer.

** The views expressed here are not necessarily those of Independent Media

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