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South African employers should be aware that sending instructions to employees outside of their stipulated working hours could be unlawful under labor law.
So says Kavita Kooverjee, senior professional assistant at SchoemanLaw Inc., who recently a short article Discussing the use of WhatsApp for work-related communication.
Kooverjee explained that the Basic Conditions of Employment Act stipulates that workers in South Africa cannot work more than 45 hours per week.
You are also entitled to a daily rest period of 12 consecutive hours and a weekly rest period of 36 hours, including Sundays.
According to Kooverjee, replying to a message outside of official working hours is considered doing your job.
“An employee should not be expected to be available to an employer 24 hours a day, and employers should not feel free to contact employees at any time,” Kooverjee said.
She elaborated on the topic during a last job interview with eNCA.
“We have seen situations where people have been fired for not responding to an instruction sent via WhatsApp,” Kooverjee said. “The problem we have is that some employers think it’s okay to message their employees after hours.”
“Although it’s legal, it’s not reasonable. Some employees are not available 24 hours. They also have their personal time.”
“We have to think: should we be? the available to our employers?”
Kooverjee said there are exceptions when replying to a message outside of typical working hours is appropriate.
This includes an emergency or if you have negotiated outside of working hours with your employer. The latter depends on the scope of your work.
An example might be a lawyer who needs to produce court documents in a timely manner. Another is a factory worker who needs help to fix a broken machine that could create a dangerous situation or cause financial loss to the company.
Union Solidarity previously explained when an instruction might be useful and when not.
“It is perfectly reasonable for the employer to expect the employee to keep their workplace clean, but it is unfair and unfair for the employer to call the employees at 8am on a Saturday morning and ask them to go to work immediately clean up their workplaces,” the union said.
Solidarność said that when the employer gives instructions to an employee who is neither competent nor qualified to carry them out, the instructions are unreasonable and illegal.
“In such a case, therefore, the employee does not have to carry out the instruction, regardless of how the instruction is transmitted or what platform is used to transmit the instruction,” the organization said.
Solidarity added that workers and employers should use their discretion to respect each other’s privacy and determine the necessity and urgency of an instruction.
“It may seem unfair for an employer to start giving instructions for the coming week on a Sunday evening when the instructions are such that they could be given on a Monday morning during working hours.”
“On the other hand, WhatsApp allows the employee to ignore the messages until Monday morning and deal with them within working hours.”
Kooverjee agreed, explaining that unless the instruction is an emergency or responding to it is not in the nature of your job, employees don’t have to respond immediately via WhatsApp outside of working hours.
“It can be reacted to the next [work] Day,” said Kooverjee.
