Section 76 of the Basic Conditions of Employment Act requires the employer to prove the accuracy and validity of any record that it maintains and, if it has failed to maintain a record, it must prove that it has complied with the Act.

In Venter vs Symington & De Kok the Court pointed out that the onus of proving that overtime was worked still rests on the employee, but once the employee is able to show on a balance of probabilities that she did work overtime on certain occasions, the burden of proving compliance with the BCEA shifts to the employer.

The Court accepted that instructions that particular work had to be finished before the employee could leave for the day was to be construed as an instruction to work overtime, and accordingly payment was thus due to the employee.

This case is amongst many that highlight the importance of keeping records which comply with the BCEA.

For advice in relation to the Basic Conditions of Employment Act contact Goldberg & De Villiers Inc., Tracey Mouton on (041) 501 9801 or e-mail:

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