No matter how small a business is or the number of employees it has, the South African labour law states that it must give employees a written document that outlines in writing the terms and conditions of their employment. Not doing so, can land it in hot water somewhere along the line. Ivan Israelstam gives a few tips on Employment contracts in line with the law.

A business must give its employees, in writing, the terms and conditions of their employment. This document can take the form of a letter of appointment, or a more formal contract of employment can be created – the form doesn’t matter it’s the content that’s important. Getting employees to sign the document avoids disputes about whether or not it was given and what it contains. This must be done upon commencement of employment and the business must retain the document for at least three years after termination of the employment relationship (Section 29 of the BCEA).

This employment document must also be updated, and a copy given to the employee when:

  • the law changes
  • your business and your employee agree to changes in the terms and conditions
  • you increase the employee’s pay or benefits (this you could do in a supplementary letter).

TIP: Better late than never! Check all your personnel records and draw up the employment documents now, even if your employees have been working for you for years.

This law applies to your business if your employees are temporary or part-time, even if they:

  • have a fixed employment period, or
  • only work one day a week, or
  • only work every weekend, or
  • only work half day.

In other words, anyone who qualifies as an ‘employee’ should receive this document from you.

3 Easy steps to protect your business from legal comebacks.

The South African labour laws offer your employees protection, but they also allow you a degree of flexibility in the terms we agree with our employees – so, rather be proactive and protect your business.

Do this by taking these three steps today:

  1. Design an employment agreement (whether it’s in the form of a contract or a letter) that complies with the law, but fits with your business requirements.
  2. Make it a requirement for the selected job applicant to sign the contract BEFORE commencing employment.
  3. Explain (with the aid of an interpreter, if necessary) the contents of the contract to the employee/applicant in a language he understands. This is required by law.

By doing so, you will avoid the following situation:

Your company hires Nathan as editor. He starts work on Monday without signing his employment contract. You ask him on Thursday to sign the document, but he refuses because he doesn’t agree with the restraint of trade clause. You threaten to cancel the contract. He threatens to go to the CCMA because, having started work, he has automatically become your employee.

In this situation Nathan is right – you can’t cancel his contract. If you want him to sign, you will have to take out the restraint clause. Rather ensure Nathan signs the contract – including the restraint of trade clause – before you appoint him or he commences employment. If he refuses to accept the terms of employment, you don’t have to employ him, because he has neither signed the contract, nor begun work.

Written Particulars of Employment

At the start of employment, employers must give workers a document containing the following information…

Based on Legislation in Section 29, of the Basic Conditions of Employment Act

Employer and Worker Details

  • Employer’s full name
  • Employer’s address
  • Worker’s name
  • Worker’s occupation, or a brief description of the work

Employment Details

  • Place/s of work
  • Date of employment
  • Working hours and days of work

Payment Details

  • Salary or wage, or the rate and method of calculating wages
  • Rate for overtime
  • Any other cash payments
  • Any payments in kind and their value
  • Frequency of payment
  • Any deductions

Leave Details

  • Any leave to which the worker is entitled

Notice/Contract Period

  • Period of notice required for termination; or
  • Period of contract

If your business needs more help with staff issues and contracts you can also contact an outside Labour consultant to help you. I can recommend: Marietjie Mouton from the company DPS Labour Law Consultants, however, there are many of these consultants available. http://www.dpsconsult.co.za/home –  marietjie@dpsconsult.co.za

Related Links

Rules for annual leave as prescribed by the Basic Conditions of Employment Act

The Basic Conditions of Employment Act allows for deductions from a worker’s pay only under certain conditions.

Under the Basic Conditions of Employment Act, workers may take paid leave to attend to certain family situations

The Basic Conditions of Employment Act gives pregnant workers the right to take maternity leave

The Basic Conditions of Employment regulates overtime working hours and pay for such hours.

The Basic Conditions of Employment Act stipulates that employers must give workers certain details each time they are paid.

The Basic Conditions of Employment stipulates the conditions for working on Public Holidays for workers.

Rules for sick leave as prescribed by the Basic Conditions of Employment Act.

The Basic Conditions of Employment Act stipulates the procedures for termination of an employment contract.

The Basic Conditions of Employment Act regulates working hours and rest periods for workers.

The Basic Conditions of Employment prescribes the wages for working on a Sunday.

References:

http://labourlawhandbook.co.za/content/4-types-employees-you-dont-have-pay-overtime

http://southafrica.smetoolkit.org/sa/en/content/en/5331/The-employment-contract

http://www.labourguide.co.za/contracts-of-employments/208-companies-must-aware-of-employee-definition3

http://www.labour.gov.za/DOL/legislation/acts/basic-guides/basic-guide-to-employment-contracts