The contract of employment is the foundation of the relationship between an employee and their employer. The existence of an employment relationship is the starting point for the application of all labour law rules and if there is no employment relationship between the parties, the rules of labour law do not apply to that relationship.
There is no requirement in Labour Legislation of South Africa that an employment relationship must be reduced to writing in order to exist. The Labour Relations Act (LRA) requires that employment relationships with employees appointed on fixed-term contracts be reduced to writing. This does however not imply that in the absence of such an agreement, there is no employment relationship. Certain other contracts of employment must however be in writing as required by other statutes. Examples are merchant seamen, learners under the Skills Development Act, and candidate attorneys.
The only other requirement pertaining to the formalization of an employment relationship is found in section 29 of the Basic Conditions of Employment Act (BCEA).
An employer must supply an employee, when the employee commences employment, with the following particulars in writing –
(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 employee 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 the 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 for the employee where a copy of each may be obtained.
When any matter listed above changes, the written particulars must be revised, and the employee must be supplied with a copy of the document reflecting the change.
Suppose an employee is not able to understand the written particulars. In that case, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands.
Written particulars must be kept by the employer for a period of three (3) years after the termination of employment.
The parties must enter into the contract freely and voluntarily. Forced labour is prohibited in terms of section 48 of the BCEA as no one can be compelled to work for another. Likewise, no employer can be compelled to take a particular person into service, and as with all contracts in South African law, parties cannot enter into illegal contracts of employment.
What should be agreed to in the contract?
The contents of the agreement will depend on a number of factors such as the nature of the employer’s business, the nature of the work performed by the employee, etc.
In addition to typical employment conditions such as working hours, leave, sick leave, and remunerations, the parties should also upfront agree on other specific conditions as:
· A restraint of trade.
· Confidentiality.
· Medical testing where so required.
· Random and specific drug and alcohol screening.
· Random and specific searches.
· Random and specific polygraph screening.
