With 29 May (election day) being set as a public holiday, clarity is needed as to what employers may expect from their employees and likewise what employees may expect from their employers. Tracey Mouton provides clarity below.

Would 29 May as a public holiday be treated any differently to any other public holiday on the calendar?

Not at all – the Basic Conditions of Employment Act (BCEA) would be applicable, and payment would be in terms of the BCEA or the employee’s individual contract of employment. No pay in addition to that would be owing, should an employee work on election day.

Is a Company obliged to give an employee leave to vote?

This depends on whether the employee would ordinarily work on a public holiday and has contracted to work on a public holiday. If the answer is yes, then the Company is not obliged to grant leave to the employee if operationally employees are required at work. For example, retail stores or even factories which require 24-hour operations.

If a Company does not ordinarily operate on a public holiday or has not contracted with its employees to work on a public holiday, then the Company cannot force the employee to work.

If the Company is not obliged to grant leave, how would employees be able to exercise their democratic right to vote?

Whilst leave does not need to be granted, it would be remiss of an employer not to discuss the operational needs and manning requirements with employees leading up to voting day.

This will ensure that employees who wish to vote are able to do so.

Additional shifts could be introduced to allow for shortened working hours so that the employees would be able to vote either before or after their shift starts or ends.

If leave cannot be granted for the day, the employee could vote after work as the polling stations only close at 21h00. Employers must however be mindful of employees who need to travel to their registered voting station and allow some flexibility where they are able to do so.

Would an employee be AWOL if he/she was scheduled to work and did not arrive?

Yes, the normal rules of business does not change. Flexibility is required, however if the employee says he will be at work and does not arrive, he may be disciplined for AWOL.

What if the employee says that he/she was stuck in the voting queue and therefore couldn’t make it to work? May an employer discipline in such circumstances?

Again, a measure of flexibility on election day is required as this may well occur. However, if the employee does not phone his employer to alert him to the situation, and at least provide evidence, he/she may be disciplined.

Same goes for an employee who arranges not to work as he wishes to vote and then does not vote. It is important to remember, this is not a day off to relax. It has been declared a public holiday to allow South Africans to vote. If an employee elects not to exercise his/her democratic vote, which is also an entitlement, then he/she should be at work.

For more information, contact Tracey Mouton at Goldberg & de Villiers Inc. on 041-5019800 | traceym@goldlaw.co.za


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