Employers, in whatever shape or form they come in, whether it be large businesses, start-up enterprises or merely an individual who makes use of the services of one or two employees, for example, a domestic worker, a personal assistant or a child minder, all need to comply with the Labour Laws of South Africa. The Labour Laws of South Africa as it pertains to the employment relationship between an Employer and an Employee are governed by four main pieces of legislation, namely; The Basic Conditions of Employment Act 75 of 1997, The Labour Relations Act 66 of 1995, The Occupational Health and Safety Act 85 of 1993 and The Employment Equity Act 55 of 1998 (“the Acts”). The Acts, for ease of reference for readers hereof, can be found online at www.labour.gov.za. For the purposes of the content of this article, the Basic Conditions of Employment Act (“the BCEA”) will apply.

Consequences of Non-compliance by Employers

Many Employers appear to be employing workers without adhering to basic compliance rules as set out in the BCEA. Non-compliance often result in numerous dispute referrals to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), relevant Bargaining Councils dependant on the sector of the trade industry the Employee is employed in and of course, the Labour Court, resulting in the Employer having to defend such actions and who in most cases then have to resort to assistance of Attorneys at a huge cost.

In this article we will unpack the basic necessities of entering into an employment relationship in order to avoid the possibilities of Employers having to defend dispute referrals at the CCMA, Bargaining Councils or Labour Court.

The Employment Contract or Written Letter of Appointment

In terms of the BCEA an Employer must provide an Employee, prior to the Employee commencing employment, with the terms and conditions of the employment relationship and agreement between the Employer and Employer in writing via what is called an employment contract or written letter of appointment.

In most cases, medium to large businesses do provide written letters of appointment as well as employment contracts to its Employees. However, it has become more than apparent that many sole proprietors or individuals who employ for example domestic workers, gardeners, child minders, personal assistants, etcetera, do not in fact provide their Employee with a written employment contract or written letter of appointment and merely go about employing their Employee via a verbal agreement. A verbal agreement does indeed validate the employment relationship, but what it does not do, is ensure the terms and conditions of the employment relationship is put to writing in order to avoid disastrous implications if the employment relationship terminates for whatsoever reason.

What Should be in the Employment Contract or Letter of Appointment?

An Employer must supply an Employee with a job title or written confirmation of what the Employee is being employed for i.e. his or her occupation. Accompanying the job title or occupation must be a job description, even if brief, setting out what the Employee will do or what his or her role and or responsibilities will be as it relates to their job title or occupation. This is imperative because if the Employee does not comply or adhere to his or her role and responsibilities then the Employer will have the right to lawfully terminate the employment relationship. If the Employee’s job description and or role and responsibilities are not clearly defined and put to writing then the Employer has nothing in writing to refer to if the Employer wishes to terminate the employment relationship in circumstances where the Employee has failed to honour the role in which he or she was employed for.

In addition to confirming the Employee’s role, title and responsibilities, the Employer must supply the Employee with the date on which his or her employment will commence and the Employee’s ordinary hours of work inclusive of days of work. 

Most importantly, the Employer must ensure that it is quite clear that the Employee knows what his or her remuneration will be so that there can be no dispute in respect of remuneration owed. Disputes regarding alleged remuneration owed to Employees have become so substantial that the Department of Labour has found itself in a position of not having sufficient capacity to deal with the influx of cases referred to it by Employees in respect of alleged remuneration owing to Employees by Employers. As a result, the CCMA has now had to take on this responsibility, the consequences of which includes an Employer having to take the time to attend at the CCMA to prove remuneration owed to an Employee has been paid, alternatively that there is a dispute surrounding the remuneration claim and to show proof of what the agreed remuneration was and that same has been paid.

Exclusions from the Rules of the BCEA

The only exclusions from these compliance rules are those Employees who work less than 24 hours per month for an Employer. Any Employee working more than 24 hours per month for his or her Employer is entitled to be provided with an employment contract or written letter of appointment.

If you as an Employee or Employer requires advice or assistance in respect of employment contracts or written letters of appointment, contact SchoemanLaw Incorporated for assistance in this regard.

Contact SchoemanLaw Inc for all your labour related legal needs.

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