Work WhatsApp groups could be breaking South African law

South African employers should be aware that sending staff instructions outside of their specified working hours could be unreasonable under labour laws.

That is according to SchoemanLaw Inc senior professional assistant Kavita Kooverjee, who recently penned a short article discussing the use of WhatsApp for work-related communication.

Kooverjee explained that the Basic Conditions of Employment Act determined that employees in South Africa may not work longer than 45 hours a week.

They 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, responding to a message outside official working hours qualified as carrying out your job.

“An employee should not be expected to be available 24 hours a day to an employer, and employers should not feel free to contact employees whenever they want,” Kooverjee explained.

She elaborated more on the issue during a recent interview with eNCA.

“We have seen situations where people are being dismissed for not responding to an instruction sent over WhatsApp,” Kooverjee stated. “The problem we have is that some employers think it is okay to message their employees after working hours.”

“Even though it’s lawful, it’s not reasonable. Some employees are not available 24 hours. They have also got their personal time.”

“We have to think: Are we meant to be that available to our employers?”

Kavita Kooverjee, senior professional assistant at SchoemanLaw Inc.

Kooverjee said there were exceptions when responding to a message outside of typical work hours would be reasonable.

These include an emergency or if responding outside of work hours is something that you have negotiated with your employer. The latter would depend on the scope of your job.

One example might be a legal professional who must deliver court documents timeously. Another is a factory worker who must clock in to help fix a broken-down machine that might create a dangerous situation or cause financial losses to the company.

Labour union Solidarity previously explained when an instruction might be reasonable and when not.

“It is quite reasonable for the employer to expect the employee to keep his/her working space tidy, but it is unfair and unjust of the employer to phone employees at 08:00 on a Saturday morning, requiring them to go to work immediately to clear up their working spaces,” the union said.

Solidarity said if the employer gives instructions to an employee who is neither competent nor qualified to carry them out, the instructions are unreasonable and unlawful.

“In such a case, the employee, therefore, does not have to carry out the instruction, irrespective of the way the instruction is communicated or the platform that is used to communicate the instruction,” the organisation said.

Solidarity added that employees and employers should use their own discretion to respect one another’s privacy and determine the necessity and urgency of an instruction.

“It may appear unfair if an employer starts giving instructions on a Sunday evening for the coming week while the instructions are of such a nature 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 to carry them out within working hours.”

Kooverjee agreed with this, stating that when the instruction was not a matter of an emergency or responding to it did not fall within the nature of your work, employees did not immediately have to reply via WhatsApp outside of working hours.

“It can be responded to the next [work] day,” Kooverjee said.

Now read: WhatsApp makes big privacy changes but South African law demands more

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Work WhatsApp groups could be breaking South African law