The status of an employee must be established from the beginning of the employment relationship, be it permanent, fixed term or temporary. Once the employee’s status has been determined, it is essential to specify the particulars of the employment relationship.
Although a written contract is not a prerequisite for a valid employment contract, it is most definitely advisable to record it in writing.
The terms and conditions of a verbal contract are difficult to prove – it is an employer’s word against the employees. By reducing everything to writing, there can be no arguments down the line regarding who said what or what the terms of the agreement were.
Section 29 of The Basic Conditions of Employment Act (BCEA) provides for specific written particulars of employment to be provided as a minimum and that every employer is obliged to provide all employees with these minimum particulars in writing at the commencement of employment.
For an employment contract to be valid, both parties must agree on the services to be provided by the employee and the remuneration the employer will pay. An agreement must be reached in good faith without misrepresentation, intimidation, or improper influence.
This type of agreement should include all the relevant information and guidance to parties involved to ensure a fair resolution of disputes. A written employment contract will prove its value in disputes that may arise.
Another aspect to consider when entering a contract of employment is a probationary clause. The probation period allows you to “onboard” an employee with a conditional agreement in place. As regulated by Schedule 8 of the Labour Relations Act (LRA), statutory probation and the applicable requirements, period, and other requirements must be agreed upon upfront in the employment contract.
The probationary status of an employee is only applicable to issues such as work performance. It has no relevance to misconduct perpetrated by the employee during probation, nor is it an easy way out for employers based on a subjective issue concerning the employee. A probationary employee is entitled to protection by labour law.
There is also no prescribed probation period length. The convention in South Africa is three months – the only requirement is that it must be “reasonable”, and it depends on the job’s nature. Probation periods in South Africa are not mandatory; however, if an employer chooses to implement one, the correct procedures must be followed.
All conditions of employment must be in line with the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA). Employers of businesses that operate within a specific industry should consult the Bargaining Council and familiarise themselves with the contents of the particular Collective Agreement or Sectorial Determination applicable to their industry to regulate the terms and conditions to be included in their contracts of employment. The Basic Conditions of Employment Act (BCEA) will apply where an employer does not fall under any specific industry.
Article By: Arlene Jacobs
Dispute Resolution Official – Bloemfontein