At common law, parties to an employment relationship are not required to observe any formalities when concluding contracts of employment. The contract arises when there is an unconditional acceptance, by the employee, of the employer’s offer. Therefore, once either a tacit (the employee commences employment after receiving the offer) or express (the employee communicates written or oral acceptance) agreement has been reached on remuneration and the nature of the employee’s duties, the contract comes into being.
Notwithstanding the common law position, the Basic Conditions of Employment Act (hereafter BCEA) stipulates that an employer that employs more than 5 employees, must supply an employee with certain particulars of employment in writing.
In Rumbles vs Kwabat Marketing (Pty) Ltd [2003] ZALC 57, the court stated: “It should be recalled though that a contract of employment may be in writing or oral, and its terms may be express or tacit. There are no formalities required for the formation of a contract of employment. Section 29 of the Basic Conditions of Employment Act 75 of 1997 requires ‘written particulars of employment’, to be given to an employee, it does not require a written contract. What is required therefore is a conspectus of all the relevant facts including any relevant contractual terms, and a determination whether these holistically viewed, establish a relationship of employment as contemplated by the statutory definition.”
Section 29 of the BCEA provides the particulars which are required to be provided in writing, namely:
(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 employment, indicating a place that is
reasonably accessible to the employee where a copy of
each may be obtained.
Should an employer fail to comply with the above provisions, the contract of employment is not void. The rights and responsibilities which flow from the agreement are enforceable and binding on the parties. Therefore, an employer cannot argue that, as there was no written contract of employment between the parties, there was no employment relationship.
The Labour Relations Act and other statutes require certain agreements to be reduced to writing. Examples include Section 198B(6)(a) of the Labour Relations Act, which requires an offer to employ an employee, earning lower than the threshold, on a fixed-term contract or to renew or extend a fixed-term contract, to be in writing. An employment contract for candidate attorneys must be reduced to writing and registered with the appropriate society. An agreement where parties wish to alter the provisions of the BCEA must also do so in writing.
Taking all the above into consideration, it is recommended that employers conclude written agreements with employees, which include the above-written particulars along with any other terms and conditions of the employment relationship, as this will provide certainty on the parties’ rights and obligations.
Article by: Carine van Blerk
Dispute Resolution Official – Cape Town