You probably know that junior staff (earning under R205 433.30 per annum) are eligible for paid overtime under the law. Their work is generally measured by the hours worked or perhaps physical output (i.e. number of widgets produced). Your senior staff (i.e. people who earn above this), don’t have an automatic claim to paid overtime. I’m aware that the work of some people who earn above the threshold are still measured like “junior” staff; but we can at least generalise that senior staff are judged on the quality and results of their work and that good work is rewarded through more indirect means like an annual bonus and career opportunities. Except…
For many businesses, it has been a tough few years. For many, the good years were quite a while ago and the chances of things improving anytime soon seem remote. There seems to be a tunnel at the end of the tunnel. So if one of your senior staff came and asked you for overtime pay, you might struggle to convince them of the usual rewards if the organisation is shrinking and bonuses haven’t been paid recently. So does your senior employee have a reasonable claim for paid overtime?
I am guessing that your answer will be a clear “no”, if you’re busy. If you have some spare time, your answer may be take the form of a loud and heart-felt tirade on the frustrations and difficulties of the business environment these days, thank you for asking.
You know that I wouldn’t be writing this if that was all there was to it, so here it comes: Senior staff don’t have a claim under employment law, but they do have a claim under the Constitution itself, albeit limited. When they included a clause against “forced labour” I’m sure they didn’t have air-conditioning, open-plan offices and ergonomic furniture in mind, but there we go.
One or two of your staff may well have a very expansive and inclusive view of what constitutes “forced labour”. However, let’s consider what a reasonable person (by which I mean a CCMA Commissioner) might consider “forced labour”:
- First of all, it should be said that there are few universal rules here. Every situation will be different.
- The employee might have a good claim if they have no choice about working the overtime, and the hours to be worked or the job to be done are set. Perhaps the staff member has to physically supervise staff in overtime or be present to open or close the offices.
- Headcount reductions may mean that your senior staff have to pick up additional, more junior duties as headcount is reduced or to cover a vacant post In this case, they might argue that there are no benefits accruing to them for the extra work. They’re not learning new skills, nor doing work that will be recognised through promotions.
As we mentioned, there are no universal rules here:
- If the company can point to an alternative method of reward, (such as a bonus, even if it is unlikely to materialise), they need not pay overtime.
- Even if overtime is inevitable, but part of their job, no claim arises. For example, your CFO is almost guaranteed to work extra hours at financial year-end, but it doesn’t ensue from a formal instruction to work set hours.
Should one of your senior staff approach you with an overtime claim, remember you have no duty to pay it. However, you do have a duty to consider such claims and negotiate reasonably with your employee. These payments are discretionary. Make sure to be seen to apply your discretion.
To summarise, these tough economic conditions are creating conditions where we often ask our staff to do more work with less opportunity to reward them through promotion, salary increases or bonuses. So don’t be surprised if you receive more requests for overtime.
It would be prudent and reasonable to consider any alternatives that might be possible, especially non-monetary ones such as time off in lieu, where practical. So before you say “no”, consider all the options and perhaps a reasonable solution will present itself. In fact, your employee will appreciate you just having this conversation and showing your appreciation to them.
Don’t be dismissive of the need to pay the overtime. It might well be true that “money is tight”, but be careful: Is there money available for something else that is not a necessity? Is it reasonable to expect this extra effort from the employee for nothing? What might happen if the employee declines to do the extra work? After all, this is their own time. What happens if the employee’s church commitments begin to prevent them from doing extra work on the weekend? They might even find something that will supplement their income.
Remember that overtime pay or a bonuses are one-off payments and as such are usually cheaper than a salary increase. And addressing an issue before it becomes a problem is usually cheaper than trying to solve it afterwards.