What is an employment contract?
If you agree to work for someone, and that person agrees to pay you for this work, then you and the employer have entered into a contract of employment. The law says that the contract does not have to be in writing, but can be a verbal contract which is legal and enforceable.
A written contract is obviously preferable, and in any event an employer is required to provide all employees with a document at the start of their employment, which details, among more specific points, off:
- Employer and worker details
- Employment details
- Payment details
- Notice/ Contract Period
- Grievance procedures
- Probation details
A contract of employment must comply with the terms and conditions of:
The Basics Conditions of Employment Act
Any Bargaining Council Agreement, collective agreement or sectoral determination, or
Any other law, such as the Labour Relations Act and the Occupational Health and Safety Act.
If a contract breaks any of these protective laws, it is not enforceable unless the conditions are more favourable to the employee. A good employment contract should provide a working practise that suits both employer and employee.
What happens if the employer breaks the contract of employment?
If the employer breaks the contract of employment, then an employee can sue the employer in a civil case for breach of contract or can refer the dispute to the Department of Labour (for example if you have not been paid your annual leave or overtime payment) It is obviously easier to prove that an employer broke a contract of employment if the contract was in writing rather than verbal.
The employee is entitled to at least the terms and conditions contained in the Basic Conditions of Employment Act. If the breach of contract goes against a term or condition of the BCEA then the employee can go to the Department of Labour and lay a complaint.. The Department will investigate the complaint, and if it is found that the employer did not follow the contract of employment, then the Inspector can issue a Compliance Order which tells the employer to comply with the BCEA.
What is the situation if the employer wants to change the terms of the contract?
An employer can change the terms of the contract even if the employee does not agree to the changes. But a change in contract is like a new contract and to change the contract the employer must give notice of the change to the employee and must negotiate the new terms and conditions with the employee.
If the employer and employee/s cannot agree about the changes in the contract, then the employer may go ahead and introduce the changes. If the employee accepts the new conditions and goes on working, then the new conditions become part of the contract.
If the employee does not agree to the changes, the employee can:
- Refer a dispute to the CCMA or Bargaining Council in terms of Section 64(4) of the Labour Relations Act.
- Refer a dispute to the CCMA or Bargaining Council for conciliation.
Refuse to accept the changes-if the employer then dismisses the employee it is an automatically unfair dismissal.
- Choose to stop working for the employer. If the employee was forced to resign rather than be forced to accept the changes, it may be an automatically unfair dismissal.
What are the different types of employment contracts?
There are 2 types of contracts:
Most employment contracts are indefinite contracts which means that when an employee starts working, no-one knows when the contract will end. An indefinite contract can only be ended in one of the following ways:
- By dismissal or termination of the contract of employment as a result of misconduct of the employee, or the incapacity of the employee or on account of retrenchment.
- When the employee reaches the normal retirement age laid down by the company or the industry.
By the death of the employee.
Fixed Term Contracts
It often happens, particularly on the farms, that the employer goes to other areas to get people to work on the farm on a temporary basis. The employees then leave their homes and go to work on this farm. These employees may be referred to as contract employees.
Some farms have times when extra employees are needed. These times are called seasons. If an employee only works on the farm for a season, then he or she is called a seasonal employee.
For both contract employees and seasonal employees, the employers must pay the employees for the full contract time, even if there is no more work for the employers to do. If an employees contract employees for one year, then the employer must pay the employee for the full year, unless the contract ends due to the employee’s fault.
The employer cannot stop the fixed term contract earlier, unless the contract makes provision for this. –Lawyer.co.za