Labour Attorneys Advice on Employment Contracts
It is advisable to seek legal guidance from labour attorneys regarding the drafting and provision of an employment contract in compliance with the terms and conditions of the Basic Conditions of Employment Act and related labour legislation in South Africa. According to the BCEA, as employer, you must furnish the employee with a written employment contract at the beginning of their employment period.
The contract should be updated when legislation changes and when the benefits, remuneration, and terms and conditions of the employment changes as agreed upon between the parties involved. With labour legislation regulations amended from time to time, we highly recommend that you consult with labour attorneys every six months or annually to ensure that your employment contracts are not in contrast with any labour laws in the country. Should this be the case, the specific contrasting terms will not be legally enforceable.
Note that even if the employment contract is verbal then the implied terms and conditions, such as the employee’s right to annual leave, are still enforceable. Only when the employee is favoured by the conditions that are in contrast to the protective labour laws can such conditions be enforced.
There are only two exceptions for not providing the employee with a written employment contract:
- If the employee works less than 24 hours in a month.
- If you have fewer than five employees.
Where the employment falls under the protection of the BCEA, the terms and conditions of the Act take priority over your employment terms unless your employment terms are more favourable than stipulated in the Act.
What can the employee do if you break the terms of the employment contract?
The employee has the right to refer the dispute to the relevant Bargaining Council, the Department of Labour, collective agreement, or to take legal steps through a lawsuit in the civil court. In the last instance, the employee will need representation by labour attorneys. The Department of Labour can investigate the employee’s allegations and if found to be true and relevant, the Department can force the employer to comply with the terms of the BCEA through the issuing of compliance order.
What if you want to change the terms of employment?
As employer you can change the terms of the employment contract and though it is recommended to seek agreement with the employee before doing so, it is not compulsory. Even if the employee doesn’t agree to the changes, if such changes are still allowable and in compliance with labour laws, you are entitled to the changes. Note that any such changes mean that you will need to create a new contract and must notify the employee of the pending changes. You will benefit from the expertise offered by our labour attorneys in changing terms of employment, following of procedure regarding notification and negotiating the new terms and conditions with the employee.
If the employee doesn’t dispute the changes, even if no agreement is reached, then the changes become enforceable. If the employee disagrees with the changes then the employee can take the issue to the Bargaining Council or to the CCMA. If the employee refuses to accept the changes in the contract, you as the employer don’t have the right to dismiss the employee as such will be deemed as an unfair dismissal.
Note that there are indefinite and fixed term contracts. Where there is no date upon which the contract ends and the employment ends upon retirement of the employee, death of the employee, when the employee resigns or closure of the company, then such is an indefinite contract. The fixed term contract stipulates the start and end period of the employment.
Contact our labour attorneys at reception@www.allardyce.co.za or on 011 234 2125 for assistance regarding any aspects of setting up and making changes to employment contracts in compliance with the relevant legislation in South Africa.
NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
