Night shift workers' rights
SECTION 17 of the Basic Conditions of Employment Act 1997 makes provision for employees working night shift. Night shift refers to the working hours between 6pm and 6am in a day.
According to the BCEA, an employer may only require or permit an employee to perform night work where there has been agreement between the parties regarding night work.
An employee must be compensated by payment of an allowance or by a reduction of working hours.
Furthermore, an employer may only require or permit an employee to work night shift where there is transportation available from the employee's place of residence and the workplace at the start and conclusion of the employee's shift.
Employees who perform night work for a period longer than one hour after 11pm and before 6am at least five times a month and at least 50 times a year are considered to perform night work on a regular basis by the BCEA.
Employees doing night work on a regular basis must be informed of the health and safety hazards of performing night work.
Furthermore, an employee working night shift must be informed of his right to undergo a medical examination concerning any health and safety hazards, before the employee starts performing the night work and at appropriate intervals while the employee continues to perform night work.
An employer is obliged to transfer an employee to suitable day work where the employee suffers from a health condition associated with the performance of night work.
Employees may not simply refuse to work night shift, an employee must show that he suffers from a health condition associated with night work.
In a case that came before the Labour Appeal Court, the employee was a junior production assistant employed by the SABC as a radio production assistant in Bloemfontein.
The advertisement for the position warned applicants to "be prepared to work shifts and long hours". For several years, without complaining, the employee had worked night shifts.
However, after four years the employee began objecting to working at night and finally refused to work night shifts.
The employee faced a disciplinary hearing for non-compliance with his service contract.
He was dismissed and an internal appeal panel upheld the findings and sanction of the disciplinary hearing. The appellant referred his dispute to the CCMA. The CCMA confirmed that the employee's dismissal was substantively and procedurally fair.
The employee then launched review proceedings in the Labour Court. The review application was similarly unsuccessful.
The employee then appealed against the judgment of the Labour Court to the Labour Appeal Court.
The Labour Appeal Court held that there was no evidence to substantiate the employee's claim that his general health was negatively affected by the night work. The employee had to do more than produce one medical certificate, covering a couple of days only.
Even if the employee had been medically examined, and found medically unfit, he might have been boarded, or given another position, yet it does not follow that he would have retained his existing job without shift work.
- Modise is chairman of Eversheds and Mochitele a candidate attorney at Eversheds
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