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Abigail Butcher, an associate in the Employment Law practice at Cliffe Dekker Hofmeyr, notes that South Africa’s leave laws are governed by existing regulations, which could make changes difficult.

However, she noted that companies may need to be conscious in monitoring employees and also ensuring they have time to themselves.

“Leave is governed by the Basic Conditions of Employment Act (BCEA), and accordingly, employees retain the basic entitlements set out therein.

“The difficulty lies in the enforcement of current leave policies, but generally, leave provisions can apply as normal. Employers should be consciously monitoring their employees in order to avoid abuse of any leave. In addition, the employees should be entitled to ‘switch off’ during their leave period,” she said.

Countries such as Portugal have actually changed their law to incorporate a ‘right to disconnect’, with managers prohibited from contracting employees after the workday has ended.

While many South African employees continue to work from home, workers are not guaranteed the same ‘right to disconnect’ under current regulations, said Gillian Lumb and Taryn York, employment law experts at Cliffe Dekker Hofmeyr.

However, the firm said that the Basic Conditions of Employment Act (BCEA) makes provision for restrictions on maximum ordinary working hours and daily and weekly rest periods.

“More specifically, it provides that an employer may not require or permit an employee to work more than 45 hours a week, nine hours a day if the employee works five days or less a week; or eight hours a day if the employee works more than five days a week.

“In addition, it requires that employers allow their employees to have a daily rest period of at least 12 consecutive hours between ending and recommencing work, and a weekly resting period of at least 36 consecutive hours, which must include Sunday, unless otherwise agreed.”

However, Cliffe Dekker Hofmeyr said that these protections are not applicable:

  • Where employees are required to do urgent work owing to circumstances for which the employer could not reasonably have been expected to make provision for and which cannot be performed during ordinary working hours;
  • If the employee is a senior managerial employee;
  • If the employee earns above the annual earnings threshold set by the Minister of Employment and Labour from time to time which is at present the amount of R211,596.30.

“No matter an employee’s seniority or earnings, in terms of the BCEA every employer must regulate the working hours of an employee in accordance with the provisions of any Act governing health and safety, with due regard to employees’ health and safety, with due regard to the Code of Good Practice on the Regulation of Working Time and with due regard to employees’ family responsibilities.”

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