The Basic Conditions of Employment Act makes it illegal for the employer not to provide you with written details regarding your employment. These written details are usually contained in what we call an employment contract. However, there have been cases where an employer effectively argued that an email containing required information and or any other written document that includes information required by law is the required written details. In this article, we will focus on the written employment contract.
The employment contract sets out your status as an employee and the employer should furnish you with this agreement at the start of your employment. The contract states details such the leave, remuneration, company policy and when payment can be expected according to the requirements of Labour Law in South Africa. The contract also forms the basis of your relationship with the employer, as it details allowable conduct and the company’s disciplinary code.
The employment contract is a reciprocal agreement where you, as the employee, make your services available to the employer for a predetermined amount or an amount that can be determined and the employer has authority over the way and time you provide these services.
The employment contract must be updated if the Labour Law legislation changes, when your benefits or remuneration increase, or when there are changes regarding the terms and conditions of your employment which you have agreed upon.
Even if you are a part-time employee, the employer should still provide you with a contract, even if you only work once a week, are employed for a fixed term, or work only weekends or half-days. If you qualify as an employee, then according to Labour Law legislation, you are entitled to an employment contract.
Even in the instance where the employer did not discuss specific terms and conditions of employment, such as your right to annual or sick leave, you will still be entitled to such because such conditions are implied. A verbal employment contract is still enforceable, as are all the implied terms of employment.
How is it possible for an employer to create a verbal contract legally?
There are exceptions to the Basic Conditions of Employment Act requirement for having to offer the employee a written employment contract, such as:
- Where the employee works less than 24 hours per 30 days period.
- Where the employer has less than five employees.
You can still take legal steps regarding grievances with the employer even if you don’t have a written employment contract. Labour Law attorneys are able to explain your rights and the necessary steps upon consultation.
Particulars to be included in the Employment Contract
Certain minimum details must be included in the employment contract, including the job description, the hours that the employer expects you to work, overtime rates and normal remuneration rates, as well as payment in kind, the leave you are entitled to, deductions you can expect, payment date, contact details of the employer and the termination of service notice period.
Why the Employment Contract is necessary
The contract protects the employer and employee. It is a legally binding agreement where if one party breaches the contract, the other party has the right to take steps as allowed for in the Labour Law regulations of South Africa.
Compliance with the Law
The employment contract must comply with the relevant labour legislation such as the Basic Conditions of Employment Act, the collective agreement for the particular industry or the Bargaining Council Agreement and all labour laws, such as the Employment Act, Labour Relations Act, Basic Conditions of Employment Act and the Occupational Health and Safety Act. An employment contract is not legally enforceable if the wording is in contrast to any of the labour related acts in South Africa.
By Cindy Ross