The requirement for record-keeping arises from the Basic Conditions of Employment Act (BCEA), wherein Section 29, read with Section 31, provides that an employer must keep a record of the terms and conditions of employment for each employee. The Act further provides that employers must record the working hours of all employees in an attendance register and keep a record of remuneration.

Section 205 of the Labour Relations Act (LRA) further contains provisions which stipulate when records should be kept, while, for example, Section 198B of the LRA states that fixed-term contracts must be in writing. Schedule 8 of the LRA Code of Good Practice stipulates that the dismissal of an employee requires that employers keep records of all disciplinary action taken against employees, the reason for it, and the outcome of that disciplinary action.

These records must be kept for three (3) years, calculated from the date of termination of the contract of employment or the date of last entry in the records.

For many employers, these requirements are overlooked for convenience or under the auspices of the so-called “gentleman’s agreement”. This may give rise to adverse consequences in the instance that employees should refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Where a dispute arises regarding a claim for statutory money, the employer can refer to the attendance records to prove the correct working hours, holidays and overtime were calculated, and the remuneration paid accordingly. Employers are advised to keep these records for at least three (3) years since an employee may refer a Section 73A dispute to the CCMA.

Where a dispute relating to a fixed-term contract is brought before the CCMA, the LRA provides that the conclusion of the fixed-term contract must be in writing; the consequence for failing to place such agreement in writing is that the employer may receive an adverse ruling even if the intention of the contract was temporary employment.

The case of NUMSA v John Thompson Africa (Pty) Ltd [1997] 7 BLLR 932 (CCMA) highlights the consequences that may arise from poor record keeping, resulting in the employer failing to discharge the burden of proof in a dismissal dispute and the employee being reinstated as a result. Employers are encouraged to keep detailed records of all disciplinary actions, mainly when relying on same in a dismissal dispute.

Employers that have good record-keeping practices have an advantage in that it will improve the transparency and operation of their business. When records are accurate, disputes arising out of time and pay can be resolved internally, resulting in fewer disputes referred to the CCMA and may further improve the relationship between employers and employees where a dispute is resolved without the assistance of outside mediation. Furthermore, good record-keeping will reduce the risk of adverse outcomes in labour disputes.

Article By: Wesley Lazarus
Dispute Resolution Official – CEO George