INTRODUCTION
The first good step in ensuring that employment contracts are not in contravention of the provisions of the Basic Condition of Employment Act (BCEA) is to consider section 29 of the BCEA, which essentially sets out the minimum particulars that must be in writing prior to an employee’s first day of commencing employment.
WHAT IS SECTION 29 OF THE BCEA: WRITTEN PARTICULARS OF EMPLOYMENT
The BCEA does not expressly compel employers to conclude written contracts with their employees. Section 29 of the BCEA does require employers to provide a general list of written particulars to their employees prior to the first day of commencing employment. However, these provisions do not apply to employees working less than 24 hours per month and employers who employ less than 5 people.
This list of particulars can be found in section 29(1)(a)-(p) of the BCEA and provides as follows:
(a) the full name and address of the employer;
(b) the name and occupation of the employee, or a brief description of
the work for which the employee is employed;
(c) the place of work, and where the employee is required or permitted
to work at various places, an indication of this;
(d) the date on which the employment began;
(e) the employee’s ordinary hours of work and days of work;
(f) the employee’s wage or the rate and method of calculating wages;
(g) the rate of pay for overtime work;
(h) any other cash payments that the employee is entitled to;
(i) any payment in kind that the employee is entitled to and the value
of the payment in kind;
(j) how frequently remuneration will be paid;
(k) any deductions to be made from the employee’s remuneration;
(l) the leave to which the employee is entitled;
(m) the period of notice required to terminate employment, or if
employment is for a specified period, the date when employment is
to terminate;
(n) a description of any council or sectoral determination which covers
the employer’s business;
(o) any period of employment with a previous employer that
counts towards the employee’s period of employment;
(p) a list of any other documents that form part of the contract of
Notwithstanding the fact that this section does not expressly state that these particulars must be included in a contract but only that they should be in writing, it is advisable that employers should include the above particulars as part of the terms and conditions of their employment contracts. This will ensure that there is consistent compliance on their part and efficient business practice.
This section also provides that any changes made to the listed particulars; must be revised in writing and provided to the employee and thereafter explained to the employee in a language and manner that he/she understands. The employer must safeguard the written particulars of employees for a period of three years.
An employer who has concluded an oral agreement with his or her employees; should at least provide them with written particulars. Failure to reduce the particulars to writing, give rise to a number of potential compliance issues which are consequent to this practice. Amongst those is the evidentiary burden of proof to establish what the actual terms and conditions of the agreement were.
The Labour Court has clarified the position regarding the validity of oral employment contracts. In the case of Temo v Van Niekerk and Others (JR1772/13) [2015] ZALCJHB 160 [PAR 11] it was held:
“It should be pointed out that the absence of a signed agreement does not take the employment relationship outside the provisions of the Labour Relations Act. An oral employment contract provides an employee with no less rights than those rights envisaged in the Labour Relations Act as those employed in terms of a written contract. To this extent, an employee employed in terms of an oral agreement has the right not to be unfairly dismissed or subjected to an unfair labour practice in terms of section 185 of the LRA.”
In conclusion, employers must understand that the BCEA only sets out the minimum standard for particulars which must be in writing. The failure to include these in a contract does not compromise the basic rights of employees provided by our labour laws. Therefore, it is pertinent for employers to ensure that they avoid oral employment contracts and that, more importantly, their employment contracts include the particulars provisioned in section 29 of the BCEA. The real consequences of failing to comply with this section will always be adversely on the employer and not the employee.
Article by: Zwelakhe Thwala
Dispute Resolution Official – Pretoria